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A00108 Summary:

BILL NOA00108B
 
SAME ASSAME AS S01168-A
 
SPONSORGunther
 
COSPNSRGottfried, Peoples-Stokes, Barrett, Rosenthal L, Bronson, Colton, Benedetto, Cruz, Magnarelli, Weprin, Rivera J, Fall, Aubry, Otis, Steck, Santabarbara, Zebrowski, Abinanti, Barron, Seawright, Walker, Bichotte Hermelyn, Richardson, Hyndman, Pichardo, Joyner, Jean-Pierre, Rozic, Kim, Hevesi, O'Donnell, Dilan, Davila, Hunter, Williams, Carroll, Woerner, Pheffer Amato, Jones, Vanel, Niou, Taylor, Dinowitz, Dickens, Wallace, Reyes, Stern, Sayegh, Jacobson, McMahon, Abbate, Cahill, Fernandez, Frontus, Epstein, Buttenschon, Ramos, Darling, Braunstein, De La Rosa, Griffin, Quart, McDonald, Englebright, Gallagher, Burke, Kelles, Cymbrowitz, Clark, Meeks, Brabenec, Smith, Montesano, Salka, Schmitt, Morinello, Miller B, Ashby, Miller M, DeStefano, Forrest, Gonzalez-Rojas, Burdick, Mamdani, Mitaynes, Conrad, Cusick, Anderson, Zinerman, Lawler, Lunsford, Perry, Stirpe, Weinstein, Lavine, Barnwell
 
MLTSPNSRCook, Fahy, Galef, Glick, Lupardo, McDonough, Mikulin, Paulin, Pretlow, Ra, Rosenthal D, Simon, Solages, Thiele
 
Amd 2805-t, Pub Health L
 
Requires certain facilities establish clinical staffing committees.
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A00108 Actions:

BILL NOA00108B
 
01/06/2021referred to health
02/02/2021reported referred to codes
02/17/2021amend and recommit to codes
02/17/2021print number 108a
03/01/2021reported referred to ways and means
04/22/2021amend (t) and recommit to ways and means
04/22/2021print number 108b
04/28/2021reported
04/29/2021advanced to third reading cal.232
05/04/2021passed assembly
05/04/2021delivered to senate
05/04/2021REFERRED TO HEALTH
05/04/2021SUBSTITUTED FOR S1168A
05/04/20213RD READING CAL.729
05/04/2021PASSED SENATE
05/04/2021RETURNED TO ASSEMBLY
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A00108 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A108B
 
SPONSOR: Gunther
  TITLE OF BILL: An act to amend the public health law, in relation to establishing clin- ical staffing committees   PURPOSE: To establish clinical staffing committees in each general hospital to develop and oversee a clinical staffing plan.   SUMMARY OF PROVISIONS: Section one of the bill requires every general hospital to create a clinical staffing committee made up of registered nurses, licensed prac- tical nurses, ancillary staff members providing direct patient care, and hospital administrators by January 1, 2022. The committee will be responsible for developing and overseeing the implementation of a clin- ical staffing plan that will include specific guidelines or ratios, matrices, or grids indicating how many patients are assigned to each nurse and the number of ancillary staff in each unit. The Committees must take into account several factors when developing the plans, which are required to be completed and submitted to DOH by July 1 each year. The Department of health would be required to make regulations related to intensive and critical care unit staffing that would require at least 12 hours of registered nurse care per day. The Committees will also be responsible for reviewing the staffing plans, making adjustments to the plans, and responding to complaints for variations from the plans. The staffing plans must be posted in a publicly conspicuous area and posted on the DOH hospital profile website. DOH is tasked with investi- gating potential violations of the staffing plan requirements or any unresolved complaints that were submitted to a hospital's clinical staffing committee. The hospital may be subject to civil penalties for failing to remedy the violation if such violation was caused by their failure to act. However, DOH shall take into account unforeseeable emer- gency circumstances when determining whether a hospital is in violation. DOH must also submit an annual report to the Speaker of the Assembly, the Temporary President of the Senate, and the Chairs of the Health committees of the Assembly and Senate and Governor by December 31 of each year regarding the complaints received by DOH and how they were handled. An independent advisory commission will be created consisting of 9 members representing experts in staffing standards and quality of patient care, labor organizations representing nurses, and hospital representatives. The Governor, Assembly Speaker, and Temporary President of the Senate will appoint one member for each of the three categories. The Advisory Commission will evaluate the staffing levels and other quality metrics related to nurse staffing in hospitals. The Advisory Commission will send a report to the Speaker of the- Assembly, the Temporary President of the Senate, and the Chairs of the Health commit- tees of the Assembly and Senate and make a report available to the public on any further legislative action that may be necessary to improve working conditions and quality of care in hospitals by October 31, 2024 and every three years thereafter.   JUSTIFICATION: Having safe and appropriate levels of nurse and ancillary member staff- ing has been shown to reduce avoidable and adverse patient outcomes. Research has demonstrated that hospitals with lower nurse staffing levels have higher rates of pneumonia, shock, cardiac arrest, urinary tract infections and upper gastrointestinal bleeds; all leading to high- er costs and mortality from hospital-acquired complications. The improved outcomes reduce medical malpractice and other penalties result- ing from avoidable occurrences and poor patient satisfaction. In addi- tion, assuring sufficient staffing of hospital personnel protects patients and supports greater retention of nurses and promotes safer working conditions. Allowing each hospital to collaboratively develop these clinical staff- ing plans with the nurses and other staff will allow for the best staff- ing outcomes at these hospitals. With a hospital-by-hospital approach, they will be able to balance what is best for the patient and workforce while taking into account the varying needs of each individual hospital. Establishing these clinical staffing committees and staffing plans for nursing and unlicensed direct care staff in hospitals will help ensure that these facilities operate in a manner that guarantees the public safety and the delivery of quality health care services.   LEGISLATIVE HISTORY: 2019-20: A2954 reported to Ways & Means/S1032 referred to Health 2017-18: A1532 referred to Codes/S3330 referred to Health 2015-16: A8580A passed Assembly/S782 referred to Health 2013-14: A6571 reported to Ways & Means/S3691A referred to Health 2011-12: A921 reported to Ways & Means/54553 reported to Finance 2009-10: A11015 held in Ways & Means/57974 referred to Health   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately
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A00108 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         108--B
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  GUNTHER, GOTTFRIED, PEOPLES-STOKES, BARRETT,
          L. ROSENTHAL, BRONSON, COLTON, BENEDETTO,  CRUZ,  MAGNARELLI,  WEPRIN,
          J. RIVERA,  FALL, AUBRY, OTIS, STECK, SANTABARBARA, ZEBROWSKI, ABINAN-
          TI, BARRON, SEAWRIGHT, WALKER, BICHOTTE HERMELYN, RICHARDSON, HYNDMAN,
          PICHARDO, JOYNER, JEAN-PIERRE, ROZIC, KIM, HEVESI,  O'DONNELL,  DILAN,
          DAVILA,  HUNTER,  WILLIAMS,  CARROLL,  WOERNER,  PHEFFER AMATO, JONES,
          VANEL, NIOU, TAYLOR, DINOWITZ, DICKENS, WALLACE, REYES, STERN, SAYEGH,
          JACOBSON,  McMAHON,  ABBATE,  CAHILL,  FERNANDEZ,  FRONTUS,   EPSTEIN,
          BUTTENSCHON,  RAMOS,  DARLING, BRAUNSTEIN, DE LA ROSA, GRIFFIN, QUART,
          McDONALD, ENGLEBRIGHT, GALLAGHER, BURKE,  KELLES,  CYMBROWITZ,  CLARK,
          MEEKS, BRABENEC, SMITH, MONTESANO, SALKA, SCHMITT, MORINELLO, B. MILL-
          ER,  ASHBY,  M. MILLER,  DeSTEFANO,  FORREST, GONZALEZ-ROJAS, BURDICK,
          MAMDANI, MITAYNES,  CONRAD,  CUSICK,  ANDERSON,  ZINERMAN,  LAWLER  --
          Multi-Sponsored  by  --  M.  of A. BARNWELL, COOK, FAHY, GALEF, GLICK,
          LUPARDO, McDONOUGH, MIKULIN, PAULIN, PERRY, PRETLOW, RA, D. ROSENTHAL,
          SIMON, SOLAGES, THIELE -- read once and referred to the  Committee  on
          Health  --  committee  discharged,  bill amended, ordered reprinted as
          amended and recommitted to said committee -- reported and referred  to
          the Committee on Ways and Means -- committee discharged, bill amended,
          ordered reprinted as amended and recommitted to said committee
 
        AN ACT to amend the public health law, in relation to establishing clin-
          ical staffing committees
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 2805-t of the public health law, as added by  chap-
     2  ter 422 of the laws of 2009, is amended to read as follows:
     3    §  2805-t. [Disclosure] Clinical staffing committees and disclosure of
     4  nursing quality indicators. 1.  Legislative  intent.    The  legislature
     5  hereby finds and declares:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02466-12-1

        A. 108--B                           2
 
     1    (a)  Research demonstrates that nurses play a critical role in improv-
     2  ing patient safety and quality of care;
     3    (b)  Appropriate  staffing  of  general  hospital personnel, including
     4  registered nurses  available  for  patient  care,  assists  in  reducing
     5  errors,  complications  and  adverse patient care events, improves staff
     6  safety and satisfaction, and reduces incidences of workplace injuries;
     7    (c) Health care professional, technical, and  support  staff  comprise
     8  vital  components  of  the  patient care team, bringing their particular
     9  skills and services to ensuring quality patient care;
    10    (d)  Ensuring  sufficient  staffing  of  general  hospital  personnel,
    11  including  registered  nurses,  is  an  urgent public policy priority in
    12  order to protect patients and support greater  retention  of  registered
    13  nurses and safer working conditions; and
    14    (e)  It  is  the  public policy of the state to promote evidence-based
    15  nurse staffing standards and increase transparency of health  care  data
    16  and decision making based on the data.
    17    2.  Clinical  staffing  committee.  (a) Each general hospital licensed
    18  pursuant to this article shall establish and maintain a clinical  staff-
    19  ing committee, either by creating a new committee or assigning the func-
    20  tions  of  the  clinical staffing committee to an existing committee, no
    21  later than January first, two thousand twenty-two.
    22    (b) Where a collective bargaining agreement provides  for  a  staffing
    23  committee,  the  required  functions  of the clinical staffing committee
    24  established pursuant to this section shall  be  incorporated  into  that
    25  committee.  Any  staffing  or  non-staffing  committees established by a
    26  collective bargaining agreement, shall continue to function  in  accord-
    27  ance  with the terms of the agreement, and the clinical staffing commit-
    28  tee established by this section shall not limit  or  otherwise  supplant
    29  the collective bargaining agreement.
    30    (c)  At least one-half of the members of the clinical staffing commit-
    31  tee shall be registered nurses, licensed practical nurses, and ancillary
    32  members of the frontline team currently providing or  supporting  direct
    33  patient  care and up to one-half of the members shall be selected by the
    34  general hospital administration and shall include but not be limited  to
    35  the chief financial officer, the chief nursing officer, and patient care
    36  unit  directors  or  managers  or  their designees. The selection of the
    37  registered nurses, licensed practical nurses,  and  ancillary  frontline
    38  team  members  of  the  committee shall be according to their respective
    39  collective bargaining agreements if there is one in effect at the gener-
    40  al hospital for their bargaining unit. If there is no applicable collec-
    41  tive bargaining agreement, the members of the clinical staffing  commit-
    42  tee  who are registered nurses, licensed practical nurses, and ancillary
    43  members providing direct patient care shall be selected by their  peers.
    44  Ancillary  members  of the frontline team on the committee shall include
    45  but are not limited  to  patient  care  technicians,  certified  nursing
    46  assistants,  other non-licensed staff assisting with nursing or clerical
    47  tasks, and unit clerks.
    48    3. Employee participation.  Participation  in  the  clinical  staffing
    49  committee by a general hospital employee shall be on scheduled work time
    50  and  compensated  at  the  appropriate  rate  of  pay. Clinical staffing
    51  committee members shall be fully  relieved  of  all  other  work  duties
    52  during meetings of the committee and shall not have work duties added or
    53  displaced  to  other  times  as a result of their committee responsibil-
    54  ities.
    55    4. Primary responsibilities. Primary responsibilities of the  clinical
    56  staffing committee shall include the following functions:

        A. 108--B                           3
 
     1    (a)  Development and oversight of implementation of an annual clinical
     2  staffing plan. The clinical staffing plan shall include specific  staff-
     3  ing  for each patient care unit and work shift and shall be based on the
     4  needs of patients. Staffing plans shall include specific  guidelines  or
     5  ratios,  matrices, or grids indicating how many patients are assigned to
     6  each registered nurse and the number of nurses and ancillary staff to be
     7  present on each unit and shift and shall be used as the  primary  compo-
     8  nent of the general hospital staffing budget.
     9    (b)  Factors  to  be considered and incorporated in the development of
    10  the plan shall include, but are not limited to:
    11    (i) Census, including total numbers of patients on the  unit  on  each
    12  shift  and  activity  such as patient discharges, admissions, and trans-
    13  fers;
    14    (ii) Measures of acuity and intensity of all patients  and  nature  of
    15  the care to be delivered on each unit and shift;
    16    (iii) Skill mix;
    17    (iv)  The  availability,  level  of  experience, and specialty certif-
    18  ication or training of nursing personnel providing patient care, includ-
    19  ing charge nurses, on each unit and shift;
    20    (v) The need for specialized or intensive equipment;
    21    (vi) The architecture and geography of the patient care unit,  includ-
    22  ing  but  not  limited  to  placement of patient rooms, treatment areas,
    23  nursing stations, medication preparation areas, and equipment;
    24    (vii) Mechanisms and procedures  to  provide  for  one-to-one  patient
    25  observation,  when needed, for patients on psychiatric or other units as
    26  appropriate;
    27    (viii) Other special characteristics of the unit or community  patient
    28  population,  including age, cultural and linguistic diversity and needs,
    29  functional ability, communication skills, and other relevant  social  or
    30  socio-economic factors;
    31    (ix)  Measures  to  increase  worker  and  patient safety, which could
    32  include measures to improve patient throughput;
    33    (x) Staffing guidelines adopted or published by other states or  local
    34  jurisdictions,  national  nursing  professional  associations, specialty
    35  nursing organizations, and other health professional organizations;
    36    (xi) Availability of other personnel supporting  nursing  services  on
    37  the unit;
    38    (xii)  Waiver  of plan requirements in the case of unforeseeable emer-
    39  gency circumstances as defined in subdivision fourteen of this section;
    40    (xiii) Coverage to enable registered nurses, licensed practical  nurs-
    41  es,  and ancillary staff to take meal and rest breaks, planned time off,
    42  and unplanned absences that are reasonably foreseeable  as  required  by
    43  law  or  the  terms of an applicable collective bargaining agreement, if
    44  any, between the general hospital and a representative of the nursing or
    45  ancillary staff;
    46    (xiv) The nursing quality indicators required under subdivision seven-
    47  teen of this section;
    48    (xv) General hospital finances and resources; and
    49    (xvi) Provisions for limited short-term adjustments made by  appropri-
    50  ate general hospital personnel overseeing patient care operations to the
    51  staffing  levels  required  by  the plan, necessary to account for unex-
    52  pected changes in circumstances that are to be of limited duration.
    53    (c) Semiannual review of the staffing plan against patient  needs  and
    54  known  evidence-based staffing information, including the nursing sensi-
    55  tive quality indicators collected by the general hospital.

        A. 108--B                           4
 
     1    (d) Review, assessment, and response to complaints regarding potential
     2  violations of the adopted staffing plan, staffing variations,  or  other
     3  concerns  regarding  the  implementation of the staffing plan and within
     4  the purview of the committee.
     5    5.  Compliance provisions. (a) The clinical staffing plan shall comply
     6  with all federal and state laws and regulations and shall  not  diminish
     7  other  standards  contained  in state or federal law and regulations, or
     8  the terms of an applicable collective bargaining agreement, if any.
     9    (b) The clinical staffing plan shall comply with applicable  laws  and
    10  regulations, including, but not limited to:
    11    (i)  Regulations  made  by the department on burn unit staffing, liver
    12  transplant staffing, and operating room circulating nurse staffing;
    13    (ii) Staffing regulations to be promulgated by the commissioner relat-
    14  ing to staffing in intensive care and critical care units no later  than
    15  January  first, two thousand twenty-two. Such regulations shall consider
    16  the factors set forth in paragraph  (b)  of  subdivision  four  of  this
    17  section,  standards in place in neighboring states, and a minimum stand-
    18  ard of twelve hours of registered nurse care per patient per day;
    19    (iii) Such other staffing standards or regulations as are currently in
    20  effect or may hereafter be established by the department or  enacted  by
    21  the legislature; and
    22    (iv)  The  provisions  of section one hundred sixty-seven of the labor
    23  law and any related regulations.
    24    (c) The clinical staffing plan shall comply with and  incorporate  any
    25  minimum  staffing  levels  provided  for  in  any  applicable collective
    26  bargaining agreement, including  but  not  limited  to  nurse-to-patient
    27  ratios,  caregiver-to-patient ratios, staffing grids, staffing matrices,
    28  or other staffing provisions.
    29    6. Process for adoption of clinical staffing plans. (a)  The  clinical
    30  staffing  committee shall produce the general hospital's annual clinical
    31  staffing plan by July first of each year.
    32    (b) Clinical staffing plans shall be developed and adopted by  consen-
    33  sus of the clinical staffing committee.  For the purposes of determining
    34  whether  there  is  a consensus, the management members of the committee
    35  shall have one vote and the employee members of the committee shall have
    36  one vote, regardless of the actual number of members of  the  committee.
    37  Each  side may determine its own method of casting its vote to adopt all
    38  or part of the clinical staffing plan.
    39    (c) The general hospital shall adopt any clinical staffing  plan  that
    40  is wholly or partially recommended by a consensus of the clinical staff-
    41  ing committee. If there is no consensus on the recommended staffing plan
    42  or any of its parts, the chief executive officer of the general hospital
    43  shall  use  the officer's discretion to adopt a plan or partial plan for
    44  which there is no consensus. In this case, the chief  executive  officer
    45  shall  provide  a  written  explanation  of the elements of the clinical
    46  staffing plan that the committee was unable to agree on,  including  the
    47  final written proposals from the two parties and their rationales. In no
    48  event  may a chief executive officer fail to include in the adopted plan
    49  any staffing related terms and conditions of the plan that has previous-
    50  ly been adopted through any applicable collective bargaining agreement.
    51    (d) Each general hospital shall adopt and submit  its  first  hospital
    52  clinical  staffing  plan  under  this section to the department no later
    53  than July first, two thousand twenty-two and  annually  thereafter.  The
    54  plan  submitted  to  the department shall, where applicable, include the
    55  written  explanation  from  the  chief  executive  officer  and  written
    56  proposals from the two parties regarding elements that the committee did

        A. 108--B                           5

     1  not  agree  on  as  required  in  paragraph (c) of this subdivision. The
     2  submitted clinical staffing plan shall include data, from at  least  the
     3  previous  year,  on  the  frequency  and duration of variations from the
     4  adopted clinical staffing plan, the number of complaints relating to the
     5  clinical staffing plan and their disposition, as well as descriptions of
     6  unresolved complaints submitted pursuant to paragraph (b) of subdivision
     7  seven  of  this  section.  The department shall post the plan as part of
     8  each individual general hospital's health profile on the website of  the
     9  department no later than July thirty-first of each year.  If the adopted
    10  clinical  staffing  plan is subsequently amended, the amended plan shall
    11  be submitted to the department within thirty days of  adoption.  Adopted
    12  staffing  plans  shall  be  amended  to  include newly created units and
    13  existing units that undergo clinical or programmatic changes that funda-
    14  mentally alter their character or  nature.  The  department  shall  post
    15  amended staffing plans upon receipt.
    16    7.  Implementation  of  clinical staffing plans. (a) Beginning January
    17  first, two thousand twenty-three, and annually thereafter, each  general
    18  hospital  shall  implement  the  clinical  staffing plan adopted by July
    19  first of the prior calendar year, and  any  subsequent  amendments,  and
    20  assign personnel to each patient care unit in accordance with the plan.
    21    (b)  A registered nurse, licensed practical nurse, ancillary member of
    22  the frontline team, or collective bargaining representative  may  report
    23  to  the  clinical  staffing committee any variations where the personnel
    24  assignment in a patient care unit is not in accordance with the  adopted
    25  staffing  plan  and  may  make a complaint to the committee based on the
    26  variations.
    27    (c) The clinical staffing committee shall develop a process  to  exam-
    28  ine,  respond  to,  and track data submitted under paragraph (b) of this
    29  subdivision. The  clinical  staffing  committee  may  by  consensus,  as
    30  described in paragraph (b) of subdivision six of this section, determine
    31  a complaint resolved or dismissed. The clinical staffing committee shall
    32  also  establish  agreed upon rules and criteria to provide for confiden-
    33  tiality of complaints that are in the process of being examined  or  are
    34  found to be unsubstantiated.  This subdivision does not infringe upon or
    35  limit  the rights of any collective bargaining representative of employ-
    36  ees, or of any employee or group of  employees  pursuant  to  applicable
    37  law,  including without limitation any applicable state or federal labor
    38  laws.
    39    8. Posting of staffing information. Each general hospital shall  post,
    40  in  a  publicly conspicuous area on each patient care unit, the clinical
    41  staffing plan for that unit and the actual daily staffing for that shift
    42  on that unit as well as the relevant clinical staffing.
    43    9. Retaliation and intimidation prohibited. A general  hospital  shall
    44  not retaliate against or engage in any form of intimidation of:
    45    (a)  An  employee  for  performing  any  duties or responsibilities in
    46  connection with the clinical staffing committee; or
    47    (b) An employee, patient, or other individual who notifies  the  clin-
    48  ical  staffing  committee or the hospital administration of the individ-
    49  ual's staffing concerns.
    50    10. Special considerations. Nothing in this  section  is  intended  to
    51  create unreasonable burdens on critical access hospitals under 42 U.S.C.
    52  Sec.   1395i-4  and  sole  community  hospitals  under  42  U.S.C.  Sec.
    53  1395ww(d)(5) related to the operation of their clinical staffing commit-
    54  tees. Critical access and sole community hospitals may develop  flexible
    55  approaches  to  accomplish  the  requirements of this section.  Clinical
    56  staffing plans from such entities  submitted  to  the  department  shall

        A. 108--B                           6
 
     1  contain  a  description  of  any  ways  in  which the general hospital's
     2  approach to creating the plan differed from the process outlined in this
     3  section.  This subdivision does not relieve such entities  from  compli-
     4  ance  with  other  provisions  of  this section related to the adoption,
     5  implementation and adherence  to  an  adopted  clinical  staffing  plan,
     6  reporting and disclosure, or other requirements of this section.
     7    11.  Investigations.  (a)  The  department shall investigate potential
     8  violations of  this  section  following  receipt  of  a  complaint  with
     9  supporting evidence, of failure to:
    10    (i) Form or establish a clinical staffing committee;
    11    (ii)  Comply with the requirements of this section in creating a clin-
    12  ical staffing plan;
    13    (iii)  Adopt all or part of a clinical staffing plan that is  approved
    14  by  consensus  of  the  clinical staffing committee and submitted to the
    15  department;
    16    (iv) Conduct a semiannual review of a clinical staffing plan; or
    17    (v) Submit to the department a clinical staffing  plan  on  an  annual
    18  basis and any updates.
    19    (b)  The  department  shall  initiate  an  investigation of unresolved
    20  complaints, that have first been  submitted  to  the  clinical  staffing
    21  committee, regarding compliance with the clinical staffing plan, person-
    22  nel  assignments in a patient care unit or staffing levels, or any other
    23  requirement of the adopted clinical staffing plan, excluding  complaints
    24  determined  by  the  clinical  staffing  committee  to  be  resolved  or
    25  dismissed as determined by consensus of the clinical staffing  committee
    26  as described in paragraph (b) of subdivision six of this section.
    27    (c)  The  department  shall  initiate an investigation after making an
    28  assessment that there is a pattern  of  failure  to  resolve  complaints
    29  submitted  to the clinical staffing committee or a pattern of failure to
    30  reach consensus on the adoption of all or part of  a  clinical  staffing
    31  plan.  In  the  case of a pattern of failure to resolve complaints or to
    32  reach consensus on the adoption of all or part of  a  clinical  staffing
    33  plan,  the  department  shall determine if the pattern was due to one of
    34  the parties routinely refusing to resolve complaints or reach consensus.
    35    (d) Any department investigation of a complaint under this subdivision
    36  shall consider whether unforeseeable emergency circumstances as  defined
    37  in  subdivision  fourteen  of this section contributed to the failure of
    38  the general hospital to comply with this section.
    39    (e) After an investigation conducted under paragraph  (a)  or  (b)  of
    40  this  subdivision,  if  the  department determines that there has been a
    41  violation, the department shall require the general hospital to submit a
    42  corrective plan of action within forty-five days of the presentation  of
    43  findings  from  the department to the hospital. If the department deter-
    44  mines after investigation under paragraph (c) of this  subdivision  that
    45  the  general hospital representatives on the clinical staffing committee
    46  were responsible for a pattern of not  resolving  complaints  or  for  a
    47  pattern  of  not  reaching  consensus,  the department shall require the
    48  general hospital to submit a corrective action  plan  within  forty-five
    49  days  of  the  presentation of findings to the general hospital.  If the
    50  department finds that the frontline staff representatives on  the  clin-
    51  ical  staffing committee were responsible for a pattern of not resolving
    52  complaints or for a pattern of not reaching  consensus,  the  department
    53  shall  not  require  the  general hospital to submit a corrective action
    54  plan or impose a civil penalty  on  the  general  hospital  pursuant  to
    55  subdivision twelve of this section.

        A. 108--B                           7
 
     1    12.  Civil  penalties.  In  the event that a general hospital fails to
     2  submit or submits but fails to implement a  corrective  action  plan  in
     3  response to a violation or violations found by the department based on a
     4  complaint  filed  pursuant  to  paragraph (a), (b) or (c) of subdivision
     5  eleven  of  this  section,  the department may impose a civil penalty as
     6  authorized by section twelve of this chapter for all violations asserted
     7  against the general hospital, until  the  general  hospital  submits  or
     8  implements  a  corrective  action plan or takes other action directed by
     9  the department.
    10    13. Posting of penalties and related information. The department shall
    11  maintain for public inspection, including posting on the general  hospi-
    12  tal  profile  on the department website, records of any civil penalties,
    13  administrative actions, or license suspensions or revocations imposed on
    14  general hospitals under this section.
    15    14. Unforeseeable emergency circumstances. (a) For  purposes  of  this
    16  section, "unforeseeable emergency circumstance" means:
    17    (i) Any officially declared national, state, or municipal emergency;
    18    (ii) When a general hospital disaster plan is activated; or
    19    (iii)  Any  unforeseen disaster or other catastrophic event that imme-
    20  diately affects or increases the need for health care services.
    21    (b) In determining whether a general hospital has violated  its  obli-
    22  gations  under  this section to comply with the general hospital's clin-
    23  ical staffing plan, it shall not be a defense  that  it  was  unable  to
    24  secure  sufficient  staff  if  the  lack of staffing was foreseeable and
    25  could be prudently planned for or involved routine nurse staffing  needs
    26  that arose due to typical staffing patterns, typical levels of absentee-
    27  ism, and time off typically approved by the employer for vacation, holi-
    28  days, sick leave, and personal leave.
    29    15. Complaints. Nothing in this section shall be construed to preclude
    30  the  ability  to  submit  a  complaint to the department as provided for
    31  under this chapter. Nothing  in  this  section  shall  be  construed  as
    32  supplanting  other  complaint mechanisms established by a general hospi-
    33  tal, including mechanisms designed  to  aid  in  compliance  with  other
    34  federal,  state  or  local  laws.    Nothing  in  this  section shall be
    35  construed as limiting or supplanting the rights of employees  and  their
    36  collective  bargaining  representatives  to  fully  enforce  any and all
    37  rights under the terms of a collective bargaining agreement.  An employ-
    38  er shall not assert or attempt to assert a claim that enforcement of the
    39  collective bargaining agreement is barred or limited by  any  provisions
    40  of this section.
    41    16. Annual report. (a) The department shall submit an annual report to
    42  the  speaker of the assembly, the temporary president of the senate, and
    43  the chairs of the health committees of the assembly and senate  and  the
    44  governor  on  or  before December thirty-first of each year. This report
    45  shall include the number of complaints submitted to the department,  the
    46  disposition of these complaints, the number of investigations conducted,
    47  and the associated costs for complaint investigations, if any.
    48    (b)  Prior  to  the  submission  of the report, the commissioner shall
    49  convene a stakeholder workgroup consisting of hospital associations  and
    50  unions  representing nurses and other ancillary members of the frontline
    51  team. The stakeholder workgroup shall review the  report  prior  to  its
    52  submission  to  the  speaker of the assembly, the temporary president of
    53  the senate, and the chairs of the health committees of the assembly  and
    54  senate.
    55    17.  Disclosure of nursing quality indicators. (a) Every facility with
    56  an operating certificate pursuant to the requirements  of  this  article

        A. 108--B                           8
 
     1  shall  make available to the public information regarding nurse staffing
     2  and patient outcomes as specified by the commissioner by rule and  regu-
     3  lation.  The  commissioner shall promulgate rules and regulations on the
     4  disclosure of nursing quality indicators providing for the disclosure of
     5  information  including  at  least  the  following, as appropriate to the
     6  reporting facility:
     7    [(a)] (i) The number of registered nurses providing  direct  care  and
     8  the  ratio  of  patients  per  registered  nurse,  full-time equivalent,
     9  providing direct care. This information shall  be  expressed  in  actual
    10  numbers,  in terms of total hours of nursing care per patient, including
    11  adjustment for case mix and acuity, and as a percentage of patient  care
    12  staff,  and  shall  be  broken  down  in terms of the total patient care
    13  staff, each unit, and each shift.
    14    [(b)] (ii) The number of licensed practical  nurses  providing  direct
    15  care. This information shall be expressed in actual numbers, in terms of
    16  total  hours  of  nursing care per patient including adjustment for case
    17  mix and acuity, and as a percentage of patient care staff, and shall  be
    18  broken  down  in  terms  of the total patient care staff, each unit, and
    19  each shift.
    20    [(c)] (iii) The number of unlicensed  personnel  utilized  to  provide
    21  direct  patient care, including adjustment for case mix and acuity. This
    22  information shall be expressed both in actual numbers and as a  percent-
    23  age of patient care staff and shall be broken down in terms of the total
    24  patient care staff, each unit, and each shift.
    25    [(d)] (iv) Incidence of adverse patient care, including incidents such
    26  as  medication  errors,  patient  injury,  decubitus  ulcers, nosocomial
    27  infections, and nosocomial urinary tract infections.
    28    [(e)] (v) Methods used for determining and adjusting  staffing  levels
    29  and patient care needs and the facility's compliance with these methods.
    30    [(f)]  (vi)  Data regarding complaints filed with any state or federal
    31  regulatory agency, or an accrediting agency, and data regarding investi-
    32  gations and findings as a result of those complaints, degree of  compli-
    33  ance with acceptable standards, and the findings of scheduled inspection
    34  visits.
    35    [2.] (b) Such information shall be provided to the commissioner of any
    36  state  agency  responsible for licensing or accrediting the facility, or
    37  responsible for overseeing the delivery of services either  directly  or
    38  indirectly,  to  any  employee  of  a general hospital or the employee's
    39  collective bargaining agent, if any, and to any member of the public who
    40  requests such information directly from the facility. Written statements
    41  containing such information shall state the source and date thereof.
    42    (c) The commissioner shall  make  regulations  to  provide  a  uniform
    43  format or form for complying with the reporting requirements of subpara-
    44  graphs  (i), (ii) and (iii) of paragraph (a) of this subdivision, allow-
    45  ing patients and the public to clearly understand and  compare  staffing
    46  patterns  and  actual levels of staffing across facilities. Such uniform
    47  format or form shall allow facilities to include a description of  addi-
    48  tional  resources  available  to  support  unit level patient care and a
    49  description of the general hospital. The information required by subpar-
    50  agraphs (i), (ii) and  (iii)  of  paragraph  (a)  of  this  subdivision,
    51  reported in a manner determined by the commissioner, shall be filed with
    52  the  department  electronically on a quarterly basis and shall be avail-
    53  able to the public on the department's website.  The  regulations  shall
    54  take  effect  no  later than December thirty-first, two thousand twenty-
    55  two. Information required to be provided pursuant to subparagraphs  (i),

        A. 108--B                           9
 
     1  (ii) and (iii) of paragraph (a) of this subdivision shall be made avail-
     2  able to the public no later than July first, two thousand twenty-three.
     3    18.  Advisory commission. (a) There is hereby established an independ-
     4  ent advisory commission, composed of nine experts in staffing  standards
     5  and  quality  of patient care, including: three experts in nursing prac-
     6  tice, quality of nursing care or patient care  standards,  one  of  whom
     7  shall  be  appointed  by the governor, one of whom shall be appointed by
     8  the speaker of the assembly and one of whom shall be  appointed  by  the
     9  temporary  president  of  the  senate;  three  representatives of unions
    10  representing nurses, one of whom shall be appointed by the governor, one
    11  of whom shall be appointed by the speaker of the  assembly  and  one  of
    12  whom  shall  be  appointed by the temporary president of the senate; and
    13  three members representing general  hospitals,  one  of  whom  shall  be
    14  appointed by the governor, one of whom shall be appointed by the speaker
    15  of  the  assembly  and  one  of whom shall be appointed by the temporary
    16  president of the senate. The members of the commission  shall  serve  at
    17  the  pleasure  of  the  appointing official.   Members of the commission
    18  shall keep confidential any information received in the course of  their
    19  duties  and  may only use such information in the course of carrying out
    20  their duties on the commission, except  those  reports  required  to  be
    21  issued  by  the  commission  under  this section, which may only include
    22  de-identified information.
    23    (b) The advisory commission shall convene from time to time  in  order
    24  to  evaluate  the  effectiveness  of  the  clinical  staffing committees
    25  required by this section.  Such  review  shall  evaluate  the  following
    26  metrics,  including but not limited to quantitative and qualitative data
    27  on whether staffing levels were improved and maintained, patient  satis-
    28  faction,  employee  satisfaction, patient quality of care metrics, work-
    29  place safety, and any other metrics the commission deems relevant.   The
    30  commission  shall also review the annual report submitted by the depart-
    31  ment and make recommendations to the speaker of the assembly, the tempo-
    32  rary president of the senate, and the chairs of the health committees of
    33  the assembly and senate as set forth in paragraph (d) of  this  subdivi-
    34  sion.
    35    (c)  The  advisory  commission  may  collect and shall be provided all
    36  relevant information, necessary to carry out  its  functions,  from  the
    37  department  and  other  state agencies.   The commission may also invite
    38  testimony by experts in the field and from the  public.  In  making  its
    39  recommendations  to the speaker of the assembly, the temporary president
    40  of the senate, and the chairs of the health committees of  the  assembly
    41  and  senate,  the commission shall analyze relevant data, including data
    42  and factors set forth in paragraph  (b)  of  subdivision  four  of  this
    43  section  related  to  clinical staffing plans.   The commission may also
    44  make recommendations for additional or enhanced  enforcement  mechanisms
    45  or  powers  to  address  general  hospital  failure  to comply with this
    46  section and recommend the appropriation of funding for the department to
    47  enforce this section or to assist general hospitals in hiring additional
    48  staff to comply with this section.
    49    (d) The advisory commission shall submit to the speaker of the  assem-
    50  bly,  the temporary president of the senate and the chairs of the health
    51  committees of the assembly and senate, and make available to the  public
    52  a  report that makes recommendations to the speaker of the assembly, the
    53  temporary president of the senate, and the chairs of the health  commit-
    54  tees  of the assembly and senate for further legislative action, if any,
    55  in order to improve working conditions and quality of  care  in  general
    56  hospitals pursuant to this section and its intent.

        A. 108--B                          10
 
     1    (e)  The commission shall submit its report and recommendations to the
     2  speaker of the assembly, the temporary president of the senate, and  the
     3  chairs of the health committees of the assembly and senate no later than
     4  October  thirty-first,  two  thousand  twenty-four,  once three years of
     5  staffing  plans  have  been submitted to the department pursuant to this
     6  section.
     7    (f) Members of the commission shall receive no compensation for  their
     8  services,  but  shall  be  allowed  their  actual and necessary expenses
     9  incurred in the performance of their duties hereunder.
    10    (g) The legislature may appropriate funding for the commission to hire
    11  staff or consultants and provide for the operation of the commission  as
    12  reasonably necessary to fulfill its functions.
    13    § 2. If any provision of this act, or any application of any provision
    14  of  this  act,  is  held to be invalid, or to violate or be inconsistent
    15  with any federal law or regulation, that shall not affect  the  validity
    16  or  effectiveness  of  any  other provision of this act, or of any other
    17  application of any provision of this act,  which  can  be  given  effect
    18  without  that  provision or application; and to that end, the provisions
    19  and applications of this act are severable.
    20    § 3. This act shall take effect immediately.
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