Judge Declares Request for Delay in Nurse-Staffing Changes Illegal
Superior Court Judge Judy Holzer Hersher on Friday upheld a tentative ruling she made Thursday, stating that the Department of Health Services illegally delayed changes to state nurse staffing rules when it issued an emergency declaration to block a lower ratio from taking effect, the Los Angeles Times reports (Salladay, Los Angeles Times, 3/5).
Under current state law, nurses may care for no more than six patients at a time. Schwarzenegger in November 2004 delayed until January 2008 the implementation of a law -- passed under former Gov. Gray Davis (D) and scheduled to take effect this month -- that will require nurses to be responsible for the care of no more than five patients at one time.
The California Nurses Association in December 2004 filed a suit alleging the administration's emergency order illegally bypassed the Legislature. DHS officials have said the delay was necessary to avoid fiscal emergencies at hospitals.
Holzer Hersher in her preliminary ruling wrote that "considerations of nursing shortages and economic impacts are outside the scope of the rule-making because such considerations are inconsistent with the fundamental purposes of the statue to ensure that nurses be 'accessible and available to meet the needs of patients.'"
Holzer Hersher stated that there was no evidence to support the administration's use of emergency rule-making, adding, "The determination of 'emergency' is arbitrary and capricious and entirely lacking in evidentiary support" (California Healthline, 3/4).
Holzer Hersher on Friday said that DHS showed an "abuse of discretion" in its claim that the delay was necessary (Silber, Contra Costa Times, 3/5).
Holzer Hersher also denied the administration's request for a stay on the order, stating that the ratios should take effect immediately, regardless of an appeal (Los Angeles Times, 3/5).
Holzer Hersher's decision applies to the administration's emergency order. However, she did not block an administration request to order a permanent regulation change (Benson/Rapaport, Sacramento Bee, 3/5).
Health and Human Services Agency Secretary Kim Belshe said that the administration plans to appeal the decision and ask for a delay in implementing Holzer Hersher's ruling.
She said, "We intend to pursue any and all legal avenues to do what we can to stop the ruling from taking immediate effect. The nursing shortage is real. It's the context that the court needed to account for" (Contra Costa Times, 3/5). She added, "We feel we have a very, very strong case" (Sacramento Bee, 3/5).
California Hospital Association President Duane Dauner said, "Today's decision will force hospitals to choose between closing beds and eliminating patient care services in order to comply with the 1:5 ratio or breaking the law and caring for patients. As a result, additional cutbacks in hospital services are inevitable" (Contra Costa Times, 3/5).
CNA Executive Director Rose Ann DeMoro said, "This is a great victory for nurses and a great victory for patients." She added, "Schwarzenegger cannot ride roughshod over the law, over us, or over California patients" (Gledhill, San Francisco Chronicle, 3/5).
CNA President Deborah Burger, in a statement, said, "Now nurses in emergency rooms and medical and surgical units across the state will be able to provide the care that is necessary for our patients" (CNA release, 3/3).