PROPOSED RULEMAKING
DEPARTMENT OF
LABOR AND INDUSTRY
[ 34 PA. CODE CH. 225 ]
Prohibition of Excessive Overtime in Health Care Act Regulations
[42 Pa.B. 4468]
[Saturday, July 14, 2012]The Department of Labor of Industry (Department) proposes to add Chapter 225 (relating to prohibition of excessive overtime in health care) to read as set forth in Annex A under section 5 of the Prohibition of Excessive Overtime in Health Care Act (act) (43 P. S. § 932.5)
Statutory Authority
The Department is required to promulgate regulations to implement the act under section 5 of the act.
Background
The act prohibits health care facilities or employers that provide clinical care services from requiring its employees to work in excess of an agreed to, predetermined and regularly scheduled daily work shift. The act allows for mandating overtime for unforeseeable emergent circumstances and requires health care facilities or employers to use reasonable efforts to obtain staff before overtime may be mandated. The act prohibits retaliation against employees for refusing to work in excess of its limitation and provides for the Department to hold hearings, implement administrative fines and order corrective action for violations of the act. The Bureau of Labor Law Compliance (Bureau) has enforced the act since it took effect on July 1, 2009.
Regulatory Review and Promulgation
Since October 2008, the Department has met with numerous organizations whose members would be affected by the act and this proposed rulemaking. Additionally, on December 3, 2009, the Department held a public stakeholders meeting in which it provided information regarding the regulatory process and received testimony from stakeholders affected by the act and the regulations.
The following organizations presented testimony at the stakeholders meeting: Pennsylvania Association of Staff Nurses & Allied Professionals; Pennsylvania Advocacy and Resources for Autism and Intellectual Disabilities; The Hospital & Healthsystem Association of Pennsylvania; Service Employees International Union; and Bruce Ludwig.
The following groups provided written comments: Department of Public Welfare; Department of Corrections; Pennsylvania State Education Association; Department of Military and Veterans Affairs; the Pennsylvania Association of Staff Nurses & Allied Professionals; Pennsylvania Advocacy and Resources for Autism and Intellectual Disabilities; The Hospital & Healthsystem Association of Pennsylvania; Service Employees International Union; and Bruce Ludwig.
The Department reviewed this proposed rulemaking with the following Commonwealth agencies: Department of Public Welfare; Department of Corrections; Department of Military and Veterans Affairs; and Office of Administration.
Purpose
The proposed rulemaking is necessary to set forth the complaint and hearing process for alleged violations committed under the act.
Summary of Proposed Rulemaking
§ 225.1. Purpose and scope
This section states that the purpose of this chapter is to implement the act's complaint and investigation procedures and administrative penalties assessment provisions.
§ 225.2. Definitions
This section provides the following definitions necessary to interpret the act and the regulations: ''act,'' ''Bureau,'' ''employer'' and ''Secretary.'' It also contains definitions for ''employee'' and ''health care facility'' from section 2 of the act (43 P. S. § 932.2).
§ 225.3. Complaint and investigation procedure
This section enumerates the complaint and investigation procedure for alleged violations of the act. Under this section, aggrieved employees may file a complaint with the Department within 60 days of the alleged violation of the act. The complaint must be in writing and signed. This section details the information which must be in the complaint and the procedure to correct an insufficient complaint. It also allows the Department to dismiss a complaint that does not comply with the requirements.
§ 225.4. Administrative penalties
This section enumerates the factors the Department will consider when imposing penalties under section 6 of the act (43 P. S. § 932.6), including the size of business, history of previous violations and good faith attempts by the health care facility or employer to address the violation at issue.
§ 225.5. Administrative notice of violation and proposed penalty
This section enumerates the notice of violation and penalty procedure. Under this section, the Bureau will issue an administrative decision containing findings and proposed penalties which will be served by first class mail upon the violating health care facility or employer. A health care facility or employer served with an administrative decision and proposed penalty may accept the notice and pay the penalty, request a reduction in penalty or contest the administrative decision and proposed penalty. The request for reduction in penalty must be made within 10 days of the mailing date of the administrative decision and propose an alternative penalty and set forth mitigating circumstances. The filing of a request for reduction does not toll or extend the 30-day period appeal period.
§ 225.6. Contesting an administrative decision and proposed penalty
This section enumerates the procedure to be used by a health care facility or employer to contest an adverse administrative decision. The health care facility or employer contesting the administrative decision must file a written request for a hearing with the Bureau within 30 days of the mailing date of the administrative decision. The Bureau will notify the complainant of a hearing request. The section provides that untimely request for a hearing may be dismissed. A request for a hearing acts as a supersedeas of the administrative decision.
§ 225.7. Hearing
This section sets out the hearing process. The process begins with the Secretary assigning a hearing officer to schedule a de novo proceeding. The parties to the hearing are the Bureau and the health care facility or employer. The Bureau has the burden of proof that the health care facility violated the act and that the proposed penalty is appropriate.
§ 225.8. Petition to intervene
This section sets out the manner in which a third party may request to intervene in the hearing. A petition to intervene shall be filed with the hearing officer and the existing parties. The existing parties may file an answer to the petition.
§ 225.9. Adjudications
This section states that the Secretary will issue a written adjudication including relevant findings and the rationale for the adjudication. The adjudication will be served on all parties of record and include notification of appeal rights.
§ 225.10. Appeal rights
This section notifies parties that an appeal to the Secretary's adjudication may be filed to Commonwealth Court.
Affected Persons
Certain Commonwealth agencies, health care facilities and certain employees of those healthcare facilities and Commonwealth agencies as defined in section 2 of the act may be affected by this proposed rulemaking. The health care facilities and agencies affected include general or special hospitals, psychiatric hospitals, rehabilitation hospitals, hospices, ambulatory surgical facilities, long-term care nursing facilities, cancer treatment centers using radiation therapy on an ambulatory basis, inpatient drug and alcohol treatment facilities, facilities which provide clinically-related health services and are operated by the Department of Corrections, the Department of Health, the Department of Military and Veterans Affairs or the Department of Public Welfare, and mental retardation facilities operated by the Department of Public Welfare.
Employees affected are those who are involved in direct patient care activities or clinical care services and who receive an hourly wage or are classified as a nonsupervisory employee for collective bargaining purposes. Employees include individuals employed through a personnel agency that contracts with a health care facility to provide personnel.
These proposed regulations will affect the complaint and hearing process for alleged violations committed under the act.
Fiscal Impact
It is anticipated that there will be costs to the Department as a result of this proposed rulemaking. The Department cannot anticipate the costs of investigating and adjudicating alleged violations because there is not a basis for comparison for this activity. It is not expected that the levying of administrative fines will demonstrably offset costs. The Bureau has enforced the act since July 2009.
Paperwork Requirements
The Bureau has already prepared and posted information and complaint forms on the Department's web site at www.dli.state.pa.us. The act does not contain recordkeeping requirement for employers.
Sunset Date
A sunset date is not appropriate for this proposed rulemaking. The Bureau will periodically monitor this proposed rulemaking and submit amendments as needed.
Effective Date
The proposed rulemaking will be effective upon publication of a final-form rulemaking in the Pennsylvania Bulletin.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Karen Galli, Deputy Chief Counsel, 651 Boas Street, 10th Floor, Harrisburg, PA 17120, fax (717) 783-5027, kgalli@pa.gov within 30 days after publication of this proposed rulemaking in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 26, 2012, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Labor and Industry Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
JULIA K. HEARTHWAY,
SecretaryFiscal Note: 12-91. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART XII. BUREAU OF LABOR STANDARDS
CHAPTER 225. PROHIBITION OF EXCESSIVE OVERTIME IN HEALTH CARE Sec.
225.1. Purpose and scope. 225.2. Definitions. 225.3. Complaint and investigation procedure. 225.4. Administrative penalties. 225.5. Administrative notice of violation and proposed penalty. 225.6. Contesting an administrative decision and proposed penalty. 225.7. Hearing. 225.8. Petition to intervene. 225.9. Adjudications. 225.10. Appeal rights. § 225.1. Purpose and scope.
This chapter implements the complaint and investigation procedures in the act and the administrative penalties assessment provisions in the act.
§ 225.2. Definitions.
(a) Terms used in this chapter have the same meanings and are defined in the same manner as the act.
(b) In addition to the provisions of subsection (a), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Prohibition of Excessive Overtime in Health Care Act (43 P. S. §§ 932.1—932.6).
Bureau—The Bureau of Labor Law Compliance or its successor bureau within the Department assigned with enforcement of the act.
Employee—
(i) An individual employed by a health care facility or by the Commonwealth or a political subdivision or instrumentality of the Commonwealth who is involved in direct patient care activities or clinical care services and who receives an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes.
(ii) The term includes an individual employed through a personnel agency that contracts with a health care facility to provide personnel.
(iii) The term does not include a physician, physician assistant, dentist or worker involved in environmental services, clerical, maintenance, food service or other job classification not involved in direct patient care and clinical care services.
Employer—A health care facility as defined in section 2 of the act (43 P. S. § 932.2) or the Commonwealth, a political subdivision or an instrumentality of the Commonwealth engaged in direct patient care activities or clinically-related services.
Health care facility—
(i) A facility which provides clinically related health services, regardless of whether the operation is for profit or nonprofit and regardless of whether operation is by the private sector or by State or local government.
(ii) The term includes the following:
(A) A general or special hospital, a psychiatric hospital, a rehabilitation hospital, a hospice, an ambulatory surgical facility, a long-term care nursing facility, a cancer treatment center using radiation therapy on an ambulatory basis and an inpatient drug and alcohol treatment facility.
(B) A facility which provides clinically related health services and which is operated by the Department of Corrections, the Department of Health, the Department of Military and Veterans Affairs or the Department of Public Welfare.
(C) A mental retardation facility operated by the Department of Public Welfare.
(iii) The term does not include the following:
(A) An office used primarily for private or group practice by a health care practitioner.
(B) A facility providing treatment solely on the basis of prayer or spiritual means in accordance with the tenets of a church or a religious denomination.
(C) A facility conducted by a religious organization for the purpose of providing health care services exclusively to clergy or other individuals in a religious profession who are members of the religious denomination conducting the facility.
Secretary—The Secretary of the Department or the Secretary's designee.
§ 225.3. Complaint and investigation procedure.
(a) Upon receipt of a complaint or its own initiative, the Bureau will investigate alleged violations of the act.
(b) An aggrieved employee who believes there is a violation of this act against him by a health care facility may file a complaint, within 60 days of the violation, with the Department.
(c) The complaint must be in writing, signed and set forth the grounds for the complaint. A complaint must contain:
(1) The name and address of the complainant.
(2) The name and address of the employer against whom the complaint is filed.
(3) A statement of the facts forming the basis of the complaint or conclusion that there has been a violation of the act, including the date, time and place of the alleged violation.
(4) The name of witnesses.
(5) Other information that may be pertinent to an investigation.
(d) The Bureau will prepare complaint forms that will be available on the Department's web site at www.dli.state.pa.us.
(e) The Bureau will accept complaints that are not placed on the complaint form.
(f) The Bureau will record the date of receipt on a complaint. If a complaint does not provide the information required under subsection (c), the Bureau will advise the complainant in writing of the procedures necessary to comply with subsection (c) and allow the party 15 days from the date of the Bureau's letter to provide the required missing information. If the party fails to provide information fully conforming to the requirements of subsection (c), the Bureau may dismiss the complaint and will notify the complainant in writing of the dismissal.
§ 225.4. Administrative penalties.
(a) The Department may impose any of the following penalties under section 6 of the act (43 P. S. § 932.6):
(1) A fine of $100 to $1,000 per violation. A violation is comprised of each discrete time that a health care facility or employer does not comply with the act or this chapter.
(2) Order a health care facility or employer to take an action which the Department deems necessary to correct a violation of section 3 of the act (43 P. S. § 932.3) or this chapter. Actions ordered may include payment of restitution to employees, directives for compliance with the act such as changes to policy and procedures to insure future compliance and nonretaliation orders. An order must be based on the facts of each individual complaint and practices of the health care facility and employer.
(b) The Department may base administrative penalties on the following factors:
(1) Size of business. The Department will take into consideration the number of employees of the health care facility on the date the violation occurred.
(2) History of previous violations. The Department will take into consideration the number of assessed violations for the health care facility in a preceding 12-month period. Only violations for which penalties were assessed and which are not subject to further appeal will be included.
(3) Good faith of health care facility or employer. The Department will take into consideration the health care facility's good faith attempts to abate the violation at issue in the complaint and any attempts the facility has made to abate future violations.
§ 225.5. Administrative notice of violation and proposed penalty.
(a) After the completion of an investigation on an alleged violation of the act and upon finding that the act has been violated, the Bureau will issue an administrative decision containing findings and proposed penalties.
(b) The Bureau will serve by first class mail upon the violating health care facility or employer a copy of its administrative decision and proposed penalty.
(c) A health care facility or employer served with an administrative decision and proposed penalty may accept the notice and pay the penalty, request a reduction in penalty or contest the administrative decision and proposed penalty under § 225.6 (relating to contesting an administrative decision and proposed penalty).
(d) A request for a reduction in the penalty shall be made in writing to the Bureau within 10 days of the mailing date of the administrative decision and propose an alternative penalty for the Bureau's consideration setting forth mitigating circumstances. The Bureau will expeditiously act on the request for reduction of the penalty within 10 days of receipt. The filing of a request for reduction does not toll or extend the 30-day period for requesting a hearing under § 225.6.
(e) After the completion of an investigation of alleged violations of the act and upon findings that the act has not been violated, the Bureau will provide written notice to the complainant and the health care facility or employer that the investigation has been closed.
§ 225.6. Contesting an administrative decision and proposed penalty.
(a) A health care facility or employer may contest an adverse administrative decision by requesting a hearing.
(b) The health care facility or employer contesting the administrative decision shall file an original and two copies of a written request for a hearing with the Bureau within 30 days of the mailing date of the administrative decision. The hearing request shall be mailed to the Bureau at the address listed on the administrative decision.
(c) The Bureau will notify the complainant of any request made for hearing under this section.
(d) An untimely request for a hearing may be dismissed without further action by the Bureau.
(e) Filing of a request for a hearing shall act as a supersedeas of the administrative decision on the violation and proposed penalties.
§ 225.7. Hearing.
(a) The Secretary will assign the request for a hearing to a hearing officer who will schedule a de novo proceeding. The parties will receive reasonable notice of the hearing date, time and place.
(b) The hearing will be conducted in a manner to provide parties the opportunity to be heard. The hearing officer will not be bound by strict rules of evidence. Relevant evidence of reasonably probative value may be received into evidence. Reasonable examination and cross-examination of witnesses will be permitted.
(c) The parties may be represented by legal counsel, but legal representation at the hearing is not required.
(d) Testimony will be recorded and a full record kept of the proceeding.
(e) The parties will be provided the opportunity to submit briefs addressing issues raised at the hearing.
(f) The Bureau and the health care facility or employer will be the parties at the hearing.
(g) The Bureau will have the burden of proving by a preponderance of the evidence that the health care facility violated the act and that the proposed penalty is appropriate under the factors in § 225.4(b) (relating to administrative penalties).
(h) To the extent not covered by this chapter, hearings will be governed by 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
§ 225.8. Petition to intervene.
(a) The Bureau and the health care facility or employer will be the parties at the hearing.
(b) A person other than the Bureau and the health care facility or employer may request to intervene in a hearing under the following conditions:
(1) He can demonstrate any of the following:
(i) A right conferred by law.
(ii) An interest which may be so directly affected that it may be bound by the Department's action and its interest is not adequately represented by existing parties in the hearing.
(2) The party files a petition to intervene with the presiding officer and the existing parties in the hearing under 1 Pa. Code § 35.29 (relating to form and contents of petitions to intervene) no later than 30 days before the scheduled hearing unless the party shows good cause and there is no prejudice to the existing parties from the late filing. Existing parties may file an answer under 1 Pa. Code § 35.36 (relating to answers to petitions to intervene) within 20 days or other time set by the presiding officer.
(c) As soon as possible after the time set for filing of answers, the hearing officer will rule on the petition and may grant or deny intervention in whole or in part or may limit the intervenor's participation in the hearing. The hearing officer may tentatively grant intervention before the hearing only to avoid detriment to the public interest and if the hearing officer issues a final ruling on intervention before the hearing begins.
(d) A hearing officer will not grant a petition to intervene during a hearing unless good cause is shown for the late filing, the parties have the opportunity to respond or object and the petition complies with this section.
§ 225.9. Adjudications.
(a) The Secretary will issue a written adjudication. The adjudication will include relevant findings and conclusions and the rationale for the adjudication.
(b) The adjudication will include a notification to the parties of appeal rights to Commonwealth Court.
(c) The adjudication will be served upon all parties, intervenors and counsel of record.
§ 225.10. Appeal rights.
A party aggrieved by an adjudication rendered under § 225.9 (relating to adjudications) may file an appeal to Commonwealth Court within 30 days from mailing of the decision as prescribed by law or rule of court.
[Pa.B. Doc. No. 12-1301. Filed for public inspection July 13, 2012, 9:00 a.m.]
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