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Reopening Shuttered Hospitals to Expand Surge Capacity

Public Health Emergency Preparedness

This resource was part of AHRQ's Public Health Emergency Preparedness program, which was discontinued on June 30, 2011, in a realignment of Federal efforts.

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Appendix D. Legal & Regulatory Issues (continued)

Chapter 3. State Laws and Regulations Governing Hospitals

This section describes State laws and regulations related to hospitals and other health-care providers.

Every State has enacted statutes and promulgated regulations to license and regulate hospitals. Although most of these regulatory schemes predate Medicare in their origins, the Medicare Conditions of Participation (discussed above) now serve as a baseline for setting the standards by which acute-care hospitals across the country operate and deliver medical services. In addition, JCAHO is a private organization that inspects and accredits nearly all of the acute-care hospitals in the country. Thus, even though there are variations in the manner in which the each State regulates its hospitals, there are also many similarities because nearly every acute-care hospital in the country seeks certification for Medicare payment, and accreditation from JCAHO. Each State, however, has its own rules and policies regarding the waiver of its regulatory requirements in the event of a mass casualty event or an epidemic that triggers an emergency. Each may have different waiver abilities that would apply in a situation in which a surge hospital might need to be opened and operated for a period of time to increase the capacity of that State's hospital system and address patient overflow created by the mass casualty event or the epidemic.

This section examines the regulatory standards for licensing of acute care hospitals in four different States—Massachusetts, Illinois, Kansas, and Texas—and identifies State regulatory requirements that could affect a surge facility and, therefore, may require waivers. These States were chosen because they have different hospital regulatory environments in general. Thus one might expect that these four States reflect most of the important regulatory issues relevant to surge capacity expansion. Since our project used Boston, MA as a 'test' location for the reopening of a shuttered hospital for surge capacity expansion, we begin each of the following sections with Massachusetts regulations. Each section discusses the degree to which the other three States seem to be consistent with Massachusetts regulations and where there appear to be differences. This is not to suggest that Massachusetts regulations are a model that other States should follow; we simply start with Massachusetts as an example to explore each issue and as a comparison for the other selected States.

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3.1 Background

Massachusetts has a comprehensive statutory and regulatory scheme for licensure of acute care hospitals.21 The State agency with oversight authority for hospital licensure is the Massachusetts Department of Public Health (MDPH). In addition to specific Massachusetts standards, the regulations incorporate, by reference, the Medicare Conditions of Participation.22 Finally, Massachusetts offers Deemed Licensure status to any acute-care hospital that is surveyed and accredited by JCAHO.23 Deemed License status means the MDPH accepts the survey results of JCAHO as equivalent to meeting the MDPH regulatory standards.

Illinois, like Massachusetts, has comprehensive hospital licensing legislation and regulations.24 The Department of Public Health of the State of Illinois (IDPH) has oversight authority for hospital licensure. Illinois regulations require hospitals to comply with the Medicare Conditions of Participation, if participating in Medicare/Medicaid Programs.25 Illinois does not offer Deemed Licensure status to hospitals that are surveyed and accredited by JCAHO but the information obtained from surveys by JCAHO, along with data from division of the Department of Public Health or State Agencies, are considered as the State determines whether an inspection is needed.26 Illinois regulations require a specialized license (e.g., Psychiatric, Pediatric, Rehabilitation, Tuberculosis) be issued to hospitals that primarily offer a specific category of service.27 Hospitals that offer a range of acute care categories of service are issued a general license.

Recommendation: Since Medicare cops are the starting point for State hospital regulations, waivers recognized by would apply to all States.

Kansas also has a comprehensive statutory and regulatory scheme for licensure of hospitals.28 The State agency with oversight authority is the Kansas Department of Health and Environment (KDHE). Kansas hospital regulations do not specifically reference the Medicare conditions of participation. A facility surveyed by JCAHO or the American Osteopathic association (AOA) during its current license term submits the survey report to the KDHE. After reviewing the survey report,the licensing agency may notify the facility that a licensing survey will be conducted.29

Texas has comprehensive legislation and regulations for licensure of hospitals.30 The Texas Department of State Health Services (DSHS) is the State agency with oversight authority for hospital licensure.  Texas hospital licensing regulations, Title 25 Texas Administrative Code, Chapter 133, reference the Medicare Conditions of Participation for Hospitals.31 Unlike Massachusetts, the regulations do not offer Deemed Licensure status to hospitals accredited by JCAHO. The Department of State Health Services conducts an inspection of each hospital during its initial licensing period.32  Texas regulations contain specific requirements for licensure of "special hospitals." A special hospital is defined as an establishment that:

"offers services, facilities, and beds for use for more than 24 hours for two or more unrelated individuals who are regularly admitted, treated, and discharged and who require services more intensive than room, board, personal services, and general nursing care; has clinical laboratory facilities, diagnostic X-ray facilities, treatment facilities, or other definitive medical treatment; has a medical staff in regular attendance; and maintains records of the clinical work performed for each patient."33 

Application for a special hospital license requires a transfer and admission agreement between the special hospital and a general hospital, for services unavailable at the special hospital.34

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3.2 Preparing to Open a Shuttered Hospital

3.2.1 Status as a New Hospital

The surge hospital will be a shuttered facility that is reopening after having been closed for a significant period of time. 

Massachusetts: Massachusetts will treat the surge hospital as a new hospital entity opening its doors for the first time. As a new hospital, the surge facility will be required to comply with certain statutes and regulations, either through actual compliance or by securing waivers, before the facility can reopen.

Illinois: Setting up for operation in Illinois is comparable to Massachusetts, as the surge hospital will be treated as a new hospital and will need to fulfill or secure waivers for certain requirements set by Illinois statutes and regulations before the facility may open.

Kansas: Setting up for operation in Kansas is comparable to Massachusetts, as the surge hospital will be treated as a new hospital and will need to fulfill or secure waivers for certain requirements set by Kansas statutes and regulations before the facility may open.

Texas: Unlike Massachusetts, the Texas Hospital Licensing rules specifically reference requirements for reopening a building formerly licensed as a hospital. "When an applicant intends to reopen and relicense a building formerly licensed as a hospital, an onsite inspection shall be conducted by the department in accordance with §133.167(e)(4) of this title to determine compliance with applicable construction and fire safety requirements."35 These requirements are further discussed in the Construction Plan Approval for Renovations and Public Safety Certificate and Fire Safety Certificate sections of this report.

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3.2.2 Determination of Need

In Massachusetts, "No original license shall be issued to establish or maintain a hospital...unless there has been a determination by the department that there is need for such a facility at the designated location...."36 Hospitals that open after a lapse in service are required to obtain an original license. A prerequisite for an original license is a determination of need (also known as certificate of need in other States). The MDPH has discretion to grant an exemption to the determination-of-need process under the applicable regulations37 and likely would do so after receiving a written request from the surge hospital. If an exemption is not granted, the process for obtaining a determination of need is lengthy (the process can last 2 or 3 months even when an application is being handled on an expedited basis) that the surge facility would not be able to open in a timely manner.

Recommendation: States will need to waive CON requirements to allow for a temporary surge facility.

Illinois: Like Massachusetts, Illinois requires an application for hospital licensure to include a "Certificate of Need Permit (CON) or Certificate of Exemption from Certificate of Need (COE) issued by the Health Facility Planning Board."38 The Health Facility Planning Board would likely grant a COE after a written request from the surge facility. As in Massachusetts, if the exemption is not granted, the lengthy process for obtaining a CON would prevent the surge facility from opening 3-7 days after an emergency event occurs.

Kansas: Unlike Massachusetts regulations, Kansas regulations for hospital licensure do not require a Certificate of Need, therefore no exemption would be needed for this part of the process.

Texas: Unlike Massachusetts regulations, regulations for hospital licensure from the Texas Department of State Health Services do not include a Certificate of Need and exemption would not be needed for a surge facility.

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3.2.3 Construction Plan Approval for Renovations

Massachusetts regulations state that "In the case of new construction of a hospital, an institution for unwed mothers or a clinic, or in the case of alterations or additions to an existing hospital (emphasis added), an institution for unwed mothers or a clinic, preliminary architectural plans and final architectural plans and specifications shall be submitted to the division of hospital facilities of the department. Written approval of the final architectural plans and specifications shall be obtained from said division prior to said new construction or alterations or additions."39 The MDPH can waive a limited number of physical standards for a health-care facility so long as patient safety is not jeopardized or the facility's ability to provide adequate care limited.40 For example, the MDPH may well allow the surge hospital to substitute curtains for room doors for a period of time if doors are not readily available. The type of waivers requested by the surge facility, and the willingness of the MDPH to grant waivers, will depend on the number of patients and the acuity of illness of the patient population that the surge facility intends to admit. The surge facility should not anticipate significant leeway in applying for waivers as the construction standards are important for patient safety.

Illinois: As in Massachusetts, preliminary and final architectural plans must be reviewed and approved in Illinois. "When construction is contemplated, either for new buildings or additions or material alterations to existing buildings coming within the scope of this Part, design development drawings and outline specifications shall be submitted to the Department for review. Approval of design development drawings and specifications shall be obtained from the Department prior to starting final working drawings and specifications."41 The Department of Public Health must also review the final working drawings and specifications before construction begins. The IDPH may waive some standards for the surge facility.  However, as previously noted, the licensing agency will likely consider the number and acuity of patients before granting waivers and the surge facility should not seek waivers for standards that are important for patient safety.

Kansas: In Kansas preliminary and final architectural plans must be reviewed and approved. "New construction, alterations or renovations that provide space for patient services or patient rooms shall not be used until authorization has been received from the licensing agency. The licensing agency may give such authorization orally or by telephone and shall provide the facility with written confirmation within 30 days."42 Any construction must be in accordance with American institute of architects academy of architecture for health, publication No. ISBN 1-55835-151-5, entitled "1996-97 guidelines for design and construction of hospitals and health-care facilities," standards. An architect licensed in Kansas shall prepare the plans and must "certify, in writing, to the agency that the contract documents are in compliance of this regulation" before construction may begin.43  The surge facility would request waivers for specific construction standards. KDHE would only grant waivers if there is no risk to patient care.

Texas: Preliminary and final architectural plans and specifications for construction must be reviewed and approved by the Texas health department. For new construction or a formerly licensed hospital being reopened and relicensed, "necessary preliminary inspections and final construction inspections shall be conducted by the department in accordance with §133.167(e)(4)." Texas Administrative Code 133.167(e)(4) requires the department to determine the number of required inspections necessary to complete all proposed construction projects, at a minimum of two. This determination is stated in a final construction approval letter to the architect of record and the owner. The architect of record or licensee submits an Application for Construction Inspection form to request intermediate and final inspections. The intermediate construction inspection and final construction inspection should be requested at approximately 80% completion and 100% completion, respectively.  Although Texas regulations specifically describe the process for construction approval for the relicensure and reopening of a hospital, the surge facility would still seek waivers due to the time constraint for opening the hospital in 3-7 days.

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3.2.4 Public Safety Certificate and Fire Safety Certificate

Massachusetts: "No original license shall be issued [to a hospital]... unless there shall first be submitted to the department... (1) a certificate of inspection of the egresses, the means of preventing the spread of fire and the apparatus for extinguishing fire, issued by an inspector of the division of inspection of the department of public safety, and (2) a certificate of inspection issued by the head of the local fire department certifying compliance with the local ordinances."44 Prior to opening, the surge facility will be inspected by the Massachusetts Department of Public Safety for compliance with State building codes. The surge facility will also be inspected by the local fire department for compliance with local fire safety ordinances. Since the failure to comply with the State building code or local fire ordinances may jeopardize the safety of the patients and staff of the surge facility, the facility should not seek waivers for any of the Public Safety or Fire Safety requirements. 

Illinois: Illinois hospital licensing regulations do not specify that a new hospital must be inspected by the local fire authority before the issuance of a license, but IDPH may "either before or after the issuance of a license, request the cooperation of the State Fire Marshal, county and multiple county health departments, or municipal boards of health, to make investigations to determine if the applicant or licensee is complying with the minimum standards prescribed by the Department."45 Hospital regulations do require "buildings and equipment shall be so maintained as to prevent fire and other hazards to personal safety"46 and "fire detection and protection systems shall be inspected no less than twice a year by a recognized competent authority."47 As previously noted, the facility should not seek waivers for any of the Public Safety or Fire Safety requirements. 

Kansas: "Approval of the fire protection of a hospital by the local fire department shall be a prerequisite for licensure."48 In addition, regulations require hospitals to establish a plan with the nearest fire department for fire fighting service. "The hospital shall provide the fire department with a current floor plan of the building. The floor plan shall show the location of fire fighting equipment, exits, patient rooms, places where flammable and explosive gases are stored, and any other information that the fire department requires."49 The surge facility should not seek waivers for any of the Public Safety or Fire Safety requirements because they are instituted to maintain patient safety. 

The Texas DHSH requires a certificate of occupancy approved by the local fire authority and issued by the city building inspector to be submitted to the department before reopening.50 The department may also require a license application be approved by the local health authority or other local officials for compliance with municipal or State ordinances on building construction, fire prevention, and sanitation.51 "For new construction, addition, and renovation projects, written approval by the local building department and local fire authority shall be submitted during the final construction inspection by the department."52 

Texas also has regulations specific to a facility being reopened, which require an engineer must inspect sprinkler system installations "to determine that the fire sprinkler system is installed in accordance with NFPA 13 requirements prior to the final construction inspection conducted by the department."53 The department is unlikely to grant waivers for Public Safety or Fire Safety requirements.

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3.2.5 Obtaining a License

In Massachusetts a license application must be filed with the MDPH, and the facility inspected by the MDPH, before the surge facility can be authorized to open and operate.

The Applicant. A legal entity or person must be responsible and accountable for operation of the surge facility. This entity or person, known as the applicant, signs the hospital license application. The shuttered hospital that is transformed into the surge hospital will, most likely, be acquired and setup for service by the Commonwealth of Massachusetts under emergency powers held by the governor. Therefore, the applicant will probably be either the Commonwealth, a private management company hired by the Commonwealth, or another health-care facility or health-care system within the Commonwealth that either leases or is hired to manage the surge facility. As part of the licensure process, the applicant must meet certain regulatory requirements, including being deemed "responsible and suitable" to be granted a hospital license.54 Factors considered in a determination of suitability include financial capacity to operate the health-care facility, history of prior compliance with Massachusetts laws and the laws of other States governing health-care facilities, and the history of criminal conduct of the applicant and its officers, if applicable.55 Review of the license application of the surge hospital will, of necessity, be shortened. In order to expedite the license application, the applicant, if it is not the Commonwealth, should be well known to the MDPH and have a strong record of operating other health-care facilities so that the MDPH can abbreviate the licensing process without undue concern that it is risking patient safety in doing so.

Illinois: Illinois requires an applicant to have a permit to establish a hospital before he/she may obtain a license to operate a hospital. The permit to establish a hospital is required for "construction of a new hospital; change of location of a hospital; change of license of a hospital; change of license category of a hospital; whenever a facility that was not formerly required to be licensed becomes subject to licensure."56 IDPH will inspect the facility before issuing a license. This additional application process may increase the amount of time it would take a surge facility to obtain a license to operate or be an additional requirement that the facility would need to obtain a waiver for.

The IDPH considers the following factors regarding the applicant in determining whether to issue a permit to establish a hospital: 

"(1) that the applicant is fit, willing and able to provide a proper standard of hospital service for the community with particular regard to the qualification, background and character of the applicant, (2) that the financial resources available to the applicant demonstrate an ability to construct, maintain, and operate a hospital in accordance with the standards, rules, and regulations adopted pursuant to this Act, and (3) that safeguards are provided which assure hospital operation and maintenance consistent with the public interest having particular regard to safe, adequate, and efficient hospital facilities and services."57

As previously noted, the applicant of the surge facility license should be well known and have a strong record of health-care facility operation to help abbreviate the licensing process.

Kansas: In Kansas, a license application must be filed with KDHE at least 90 days before patients are admitted.58 This will not be possible for a surge facility unless the application is prepared and submitted before an emergency situation occurs. Unlike Massachusetts, the Kansas licensing regulations do not specify requirements for review of the applicant. However, if the applicant is well known to KDHE, it would likely expedite the licensing process in an emergency situation.

Texas: To obtain a license in Texas, an application (including the complete application form, a copy of the hospital's patient transfer policy, a copy of the hospital's memorandum of transfer form, copies of any patient transfer agreements, written approval by the local building department and local fire authority, verification of franchise tax status, additional documentation for new hospitals or conversions) must be filed with the Department of State Health Services. The applicant must attend a presurvey conference with DSHS and DSHS must conduct an inspection of the facility.59   Licensing regulations require the application to be submitted no earlier than 60 days before the estimated opening of the facility.60

The applicant, the person legally responsible for the operation of the hospital, seeks a hospital license from the Texas health department.61 Texas licensing regulations do not require an applicant to meet certain requirements, but if the applicant includes an individual who owns 25% or more of the business entity, the individual's name and social security numbers must be supplied with the application for license of the facility.62

States considering the use of shuttered hospitals to expand surge capacity may wish to establish procedures for granting temporary licenses during emergencies.

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3.2.6 Waivers

Massachusetts: Any shuttered hospital facility reopened on an emergency basis to meet the need for additional hospital capacity will not be able to meet the usual regulatory standards for acquiring a hospital licensure. Nor will the MDPH have time to conduct its usual review of a license application. However, the MDPH has reserved to itself authority to waive "one or more" of its hospital licensure requirements if certain standards are met, including causing a general hardship to the hospital in question.63 Waiver of a significant number of hospital licensing requirements would be necessary for the surge facility to open quickly following a mass casualty event. Assuming the surge facility is identified in advance of the mass casualty event that triggers need for opening the surge facility, a waiver request could be prepared as part of the planning process based upon the general state of the physical plant. The waiver request could then be reviewed in advance with MDPH officials and modified as necessary. The waiver request must be in writing and supported by written documentation. When a mass casualty event actually occurred, the waiver request could be updated depending upon the nature of the casualty event and the patient population to be served. Since the MDPH would have already reviewed and approved most of the request, MDPH would be able to process the request in a shortened time frame.   MDPH also has authority to issue a provisional license for a period of no more than 1 year to a hospital that is not in full compliance with applicable requirements, but which the MDPH finds is in substantial compliance and demonstrates potential for achieving full compliance within the one-year period.64 MDPH is likely to be cooperative in granting waivers as long as patient and staff safety are not compromised.  The surge facility should work with DPH to secure operational authority as quickly as possible.

Illinois: Like Massachusetts, Illinois has a process in place to allow a facility to apply for waiver of regulations. The Department of Public Health:

"may grant or renew a waiver or alternative compliance methodology with a rule or standard, including without limitation rules and standards for (i) design and construction, (ii) engineering and maintenance of the physical plant, site, equipment, and systems (heating, cooling, electrical, ventilation, plumbing, water, sewer, and solid waste disposal), (iii) fire and safety, and (iv) other rules or standards that may present a barrier to the development, adoption or implementation of an innovation designed to improve patient care for a period not to exceed the duration of the current license."65

In making this determination the department will consider "the duration and basis for any current waiver with respect to the same rule or standard and the validity and effect upon patient health safety of extending it on the same basis, the effect upon the health and safety of patients, the quality of patient care, the hospital's history of compliance with the rules and standards of this Act, and the hospital's attempts to comply with the particular rule or standard in question."66 IDPH is likely to grant waivers as long as safety of patients and staff is not compromised.

Kansas: Kansas rules allow the secretary of KDHE to grant an emergency waiver "if the need for the hospital project is a result of fire, tornado, flood, storm damage or other similar disaster, if adequate health-care facilities are not available for the people who previously used the applicant hospital's facility and if the request for an emergency waiver is limited in nature and scope only to those repairs necessitated by the natural disaster."67 Although, these rules specify that a waiver may be granted in the event a facility is damaged, there would need to be an additional waiver process to allow for the opening of a new hospital during an emergency.

Texas: Texas has a mechanism for a surge facility to submit requests for waiver to the director of the Department of State Health Services. However, waivers are not granted for fire safety requirements. The surge facility must submit a written request specifying the sections of the Texas Hospital Licensing Act or Hospital Licensing Rules for which a waiver is requested.68 The director must submit his written recommendation for granting or denying the waiver to the commissioner of health. The director's recommendation shall address each of the criteria in subsection (b) of this section:69

"The director shall consider whether the waiver or modification: (1) will adversely affect the health and safety of the hospital patients, employees, or the general public; (2) will adversely impact the hospital's participation in the Federal Medicare program or accreditation by JCAHO or the American Osteopathic Association; (3) if not granted, would impose an unreasonable hardship on the hospital in providing adequate care for patients; (4) will facilitate the creation or operation of the hospital; and (5) is appropriate when balanced against the best interests of the individuals served or to be served by the hospital."70

DSHS is likely to grant waivers, taking into consideration the criteria described in the regulations. 

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3.2.7 Physician Credentialing

Massachusetts: MGL Chapter 111, Section 203(d) requires every Massachusetts hospital to participate in a risk management program established by the Board of Registration in Medicine called the Qualified Patient Care Assessment Program.71 In order to be approved for membership on a hospital's medical staff, a physician is required to submit an application documenting possession of a valid Massachusetts license to practice medicine, criminal offender history, history of malpractice claims and lawsuits, a list of health-care facilities with which the physician has been affiliated, and disciplinary history. The process is repeated every 2 years.  There is mandated reporting of certain incidents involving physicians as well as certain types of physician behavior (e.g., substance abuse) to the Board of Registration in Medicine. An exception to the credentialing process exists for temporary appointments to the medical staff for up to 120 days in any one-year period for a physician seeking an initial appointment to a particular medical staff, provided that certain information (evidence of a Massachusetts license, of malpractice insurance, of DEA certificate of registration, etc.) is obtained by the hospital.72 The surge hospital may be able to use this 120-day exemption for the initial start-up of operations so long as it is pursuing the credentialing of every physician granted privileges at the hospital. The exemption may perhaps also be used if the surge hospital expects to cease operation within 120 days of opening. If the surge hospital is operated by an existing hospital, the existing hospital may be able to use its own credentialing process to qualify the surge hospital physicians. 

Illinois: Illinois regulations require written procedures, approved by the facility governing board, "relating to the acceptance and processing of initial applications for medical staff membership, granting and denying of medical staff reappointment, and medical staff membership or clinical privileges disciplinary matters."73

There are separate rules for county hospitals and noncounty hospitals. County Hospitals must have procedures for "determination of qualifications and privileges, criteria for evaluation of qualifications, and procedures requiring information about current health status, current license status in Illinois, and biennial review of renewed license."74 Noncounty hospitals must have written procedures for "acceptance and processing of initial applicants for medical staff membership;... determining an applicant's qualifications for being granted medical staff membership and privileges;... evaluating an applicant's qualifications;...[and] evaluation of an applicant's current health status and current license status in Illinois."75

Kansas: Kansas requires established procedures for "formal application for membership and for the granting of clinical privileges" of the medical staff.76 This set of procedures should include standards for review of staff credentials.77 Since the hospital licensing regulations do not state specific requirements for physician credentialing, it is likely the surge facility would be able to review staff credentials by deferring to the facility in which the physician is currently credentialed. A decision regarding this issue would need to be made in advance of an emergency situation.

Texas: Licensing regulations in Texas require medical staff to "examine credentials of candidates for medical staff membership and make recommendations to the governing body on the appointment of the candidate."78 Medical staff bylaws should include a description of qualifications of candidates to be recommended for appointment and "criteria for determining the privileges to be granted and a procedure for applying the criteria to individuals requesting privileges."79 Since the hospital licensing regulations do not state specific requirements for physician credentialing, it is likely the surge facility would be able to review staff credentials by deferring to the facility in which the physician is currently credentialed. This issue would need to be resolved in advance of an actual mass-casualty event.

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3.2.8 Nurse Staffing

Massachusetts: Nurse staffing requirements are set forth at 105 CMR 130.300 et seq. Every Massachusetts hospital is required to establish a nursing service under the direction of a registered nurse who must have certain academic credentials. Nursing coverage is not stated in specified nurse-patient ratios of minimum coverage. Instead, the hospital must develop a written staffing plan for each shift that assures adequate nursing coverage is available during the shift. A registered nurse is required to be working in each nursing unit during each shift. Otherwise, the regulations require only that the number of registered nurses, licensed practical nurses and unlicensed nursing personnel be sufficient and adequate to meet the needs of the patients. Thus, the level of nurse staffing at the surge hospital will depend on the acuity of patient illness or trauma and the number of patients in the facility, among other factors.

Illinois: Like Massachusetts, hospitals in Illinois must establish and organized nursing service "under the direction of a registered professional nurse who has qualifications in nursing administration."80 Illinois requires "a sufficient number of registered professional nurses shall be on duty at all times to assess, plan, assign, supervise, and evaluate nursing care and provide patients such nursing care for which the judgment and specialized skills of a registered nurse is required."81 Specific staffing requirements are required and specified for particular units of the hospital. Staffing schedules for units must identify the nurse in charge, assign personnel with consideration to patient care plans to minimize risk of cross-infections, and project future time schedules of personnel.82Since there are specific staffing requirements for particular units, a surge facility would need to meet these requirements or obtain a waiver. However, the surge facility should still consider the acuity of patients and number of patients in the facility in determining staffing levels.

Kansas: Kansas requires a hospital to have an organized nursing department, with a plan of responsibilities for each category of nursing personnel. There are no staffing requirements specified by the hospital licensing regulations. There must always be at least one registered nurse on duty. "All licensed practical nurses and other ancillary personnel performing patient care services shall be under the supervision of a registered nurse."83 Although there are no staffing requirements, the surge facility should take into account the acuity of patients in order to maintain standards of care.

Texas: Texas requires that organized nursing services, with a plan of administrative authority and responsibilities for patient care, should provide 24-hour coverage as needed. A Chief nursing officer has administrative authority and is responsible for "determining the types and numbers of nursing personnel and staff necessary to provide nursing care for all areas of the hospital."84

Requirements state that there should be an "adequate numbers of RNs, licensed vocational nurses (LVNs), and other personnel to provide nursing care to all patients... and supervisory and staff personnel for each department or nursing unit to provide the immediate availability of an RN for bedside care of any patient."85 Staffing levels should take into account patient characteristics, number of patients being cared for, intensity of care, scope of services, context within which care is provided, and nursing staff characteristics.86 Hospitals should have written procedures for setting these staffing levels.

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