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A01532 Summary:

BILL NOA01532
 
SAME ASSAME AS S03330
 
SPONSORGunther
 
COSPNSRGottfried, Rosenthal L, Brindisi, Bronson, Colton, Benedetto, Jaffee, Magnarelli, Miller MG, Weprin, Rivera, Ryan, Skartados, Sepulveda, Aubry, Otis, Skoufis, Steck, Mayer, Santabarbara, Zebrowski, Mosley, Ortiz, Titus, Abinanti, Barron, Seawright, Walker, Bichotte, Richardson, Hyndman, Peoples-Stokes, Pichardo, Joyner, Jean-Pierre, Lentol, Rozic, Kim, Hevesi, O'Donnell, Dilan, Davila, Hunter, Blake, Williams, Brabenec, Montesano, Byrne, Wallace, De La Rosa, Lavine, Carroll, D'Urso, Woerner, Pheffer Amato, Jones, Wright, Vanel, Niou, Murray, Taylor, Castorina, Arroyo, Dinowitz, Miller B, Pellegrino, Bohen, Dickens, Espinal, Smith
 
MLTSPNSRAbbate, Barnwell, Buchwald, Butler, Cahill, Cook, Crespo, Cusick, Cymbrowitz, DenDekker, Englebright, Fahy, Galef, Glick, Hooper, Jenne, Johns, Lifton, Lupardo, Magee, McDonough, Mikulin, Nolan, Paulin, Perry, Pretlow, Ra, Ramos, Rosenthal D, Simon, Simotas, Solages, Thiele, Titone, Walsh
 
Amd Pub Health L, generally
 
Enacts the "safe staffing for quality care act" to require acute care facilities and nursing homes to implement certain direct-care nurse to patient ratios in all nursing units; sets minimum staffing requirements; requires every such facility to submit a documented staffing plan to the department on an annual basis and upon application for an operating certificate; requires acute care facilities to maintain staffing records during all shifts; authorizes nurses to refuse work assignments if the assignment exceeds the nurse's abilities or if minimum staffing is not present; requires public access to documented staffing plans; imposes civil penalties for violations of such provisions; establishes private right of action for nurses discriminated against for refusing any illegal work assignment.
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A01532 Actions:

BILL NOA01532
 
01/12/2017referred to health
01/24/2017reported referred to codes
01/03/2018referred to codes
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A01532 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1532
 
SPONSOR: Gunther (MS)
  TITLE OF BILL: An act to amend the public health law, in relation to enacting the "safe staffing for quality care act"   PURPOSE OR GENERAL IDEA OF BILL: To require all acute care facilities and nursing homes to meet standards for appropriate staffing ratios of nursing and unlicensed direct care staff.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 is the short title. Section 2 amends Public Health Law § 2805 to require that application for operating certificates for a hospital include a direct care staffing plan. Section 3 adds nine new sections, 2823 through 2831, which require hospitals to maintain and comply with a staffing plan; establish the Acute Care Facility Council to be appointed by the Commissioner of Health, enumerate the elements of a satisfactory staffing plan; set forth minimum nurse to patient ratios; require clinical competency; provide for emergency situations; require public disclosure of facility staffing requirements; and allows for private right of action by employ- ees. Section 4 amends § 2801-a directing the Public Health and Health Plan- ning Council to consider staffing violations when reviewing "character, competence and standing in the community" for applications and renewals of certificates of incorporation or establishment of a hospital. Section 5 amends § 2805 requiring the Commissioner to consider staffing violations when reviewing applications and renewals operating certif- icates for acute care facilities. Section 6 amends § 2895-b to establish a Residential Health Care Facili- ty Council to be appointed by the Commissioner; requires minimum staff- hours of care per resident per day; allows for private right of action by employees; and requires public disclosure of information about direct care staffing.   JUSTIFICATION: The hospital nurse-to-patient ratios specified in this bill are based on peer-reviewed academic research and evidence-based recommendations. The minimum care hours specified for residential health care facilities are also based on research evidence and on the recommendations of the Insti- tute of Medicine's report, "Keeping Patients Safe: Transforming the Work Environment of Nurses" (2004). The number of patients assigned to a nurse has a direct impact on the quality of care that nurse can provide. Research published in the Jour- nal of the American Medical Association, estimates five additional deaths per 1,000 patients in hospitals which routinely staff with only 1:8 nurse-to-patient ratios compared to those staffing with 1:4 nurse- to-patient ratios. This same study determined the odds of patient death increased by 7% for each additional patient the nurse must care for at one time. Safe nurse staffing also reduces avoidable, adverse patient outcomes. Research funded by the federal Agency for Healthcare Research and Quali- ty (AHRQ) 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. In nursing homes, research has demonstrated that safe nurse staffing levels have a positive impact on facility processes and on resident outcomes. Research has demonstrated that as nurse turnover increases in nursing homes, the quality of resident care declines, resulting in more frequent use of restraints, urinary catheterization, and psychoactive drugs; increased risk of contractures, pressure ulcers and more survey deficiencies. A broad range of research demonstrates that increased staffing levels do not diminish the profitability of facilities. Nursing workforce costs may rise, but that increase is mitigated by overall savings from improved patient outcomes and avoided adverse events. The improved outcomes reduce medical malpractice and other penalties resulting from avoidable occurrences and poor patient satisfaction. In 2004, California became the first state to mandate nurse staffing ratios in hospitals. New statistical analysis reveals that the Califor- nia mandates are significantly associated with fewer negative outcomes for patients and staff. The study, published in Health Services Research and conducted by the Center for Health Outcomes and Policy Research, University of Pennsylvania, concluded that "Improved nurse staffing, however it is achieved, is associated with better outcomes for nurses and patients." Establishing staffing standards for nursing and unlicensed direct care staff in acute care facilities and residential health care facilities will help ensure that these facilities operate in a manner that guaran- tees the public safety and the delivery of quality health care services.   PRIOR LEGISLATIVE HISTORY: 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/S4553 reported to Finance 2009-10: A11015 held in Ways & Means/S7974 referred to Health   FISCAL IMPLICATIONS: Some staff time in the Department of Health; possible increased Medicaid spending to cover the cost of increased staffing balanced by reduced Medicaid spending as reduced bad outcomes and reduced staff turnover reduce health care costs.   EFFECTIVE DATE: Takes effect 180 days after it becomes law.
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A01532 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1532
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 12, 2017
                                       ___________
 
        Introduced by M. of A. GUNTHER, GOTTFRIED, ROSENTHAL, BRINDISI, BRONSON,
          COLTON,  BENEDETTO,  JAFFEE, MAGNARELLI, M. G. MILLER, WEPRIN, RIVERA,
          RYAN, SKARTADOS, SEPULVEDA, AUBRY, OTIS, SKOUFIS, STECK, MAYER, SANTA-
          BARBARA, ZEBROWSKI, MOSLEY, ORTIZ, TITUS, ABINANTI, BARRON, SEAWRIGHT,
          WALKER,  BICHOTTE,  RICHARDSON,  HYNDMAN,  PEOPLES-STOKES,   PICHARDO,
          JOYNER,  JEAN-PIERRE,  LENTOL,  ROZIC, HARRIS, KIM, HEVESI, O'DONNELL,
          DILAN, DAVILA, HUNTER, BLAKE, KAVANAGH, WILLIAMS, BRABENEC,  MONTESANO
          --  Multi-Sponsored  by  -- M. of A. ABBATE, ARROYO, BUCHWALD, BUTLER,
          CAHILL, COOK, CRESPO, CUSICK, CYMBROWITZ, DenDEKKER, DINOWITZ,  ENGLE-
          BRIGHT,  FAHY,  FARRELL,  GALEF,  GLICK,  GRAF,  HOOPER, JENNE, JOHNS,
          KEARNS,  LIFTON,  LUPARDO,  LUPINACCI,  MAGEE,  McDONOUGH,   McKEVITT,
          PAULIN,  PERRY, PRETLOW, RA, RAMOS, SALADINO, SIMON, SIMOTAS, SOLAGES,
          THIELE, TITONE, WOERNER -- read once and referred to the Committee  on
          Health
 
        AN ACT to amend the public health law, in relation to enacting the "safe
          staffing for quality care act"
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "safe staffing for quality care act".
     3    §  2.  Paragraphs  (a) and (b) of subdivision 2 of section 2805 of the
     4  public health law, paragraph (a) as amended by chapter 923 of  the  laws
     5  of  1973  and paragraph (b) as added by chapter 795 of the laws of 1965,
     6  are amended to read as follows:
     7    (a) Application for an operating certificate for a hospital  shall  be
     8  made  upon  forms  prescribed  by  the department. The application shall
     9  [contain] include the name of the hospital, the kind or kinds of  hospi-
    10  tal service to be provided, the location and physical description of the
    11  institution,  a  documented staffing plan, as defined in section twenty-
    12  eight hundred twenty-eight of this article, and such  other  information
    13  as the department may require.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02902-03-7

        A. 1532                             2
 
     1    (b)  An  operating  certificate  shall not be issued by the department
     2  unless it finds that  the  premises,  equipment,  personnel,  documented
     3  staffing  plan, rules and by-laws, standards of medical care, and hospi-
     4  tal service are fit and adequate and that the hospital will be  operated
     5  in  the manner required by this article and rules and regulations there-
     6  under.
     7    § 3. The public health law is amended  by  adding  nine  new  sections
     8  2827,  2828,  2829,  2830,  2831,  2832,  2833, 2834 and 2835 to read as
     9  follows:
    10    § 2827. Policy and purpose. The legislature finds and declares all  of
    11  the following:
    12    1.  Health  care  services are becoming complex and it is increasingly
    13  difficult for patients to access integrated services;
    14    2. The quality of patient care is jeopardized because of nurse  staff-
    15  ing shortages and improper utilization of nursing services;
    16    3.  To  ensure  the  adequate  protection  of  patients in health care
    17  settings, it is essential that qualified  registered  nurses  and  other
    18  licensed  nurses  be  accessible  and  available  to  meet  the needs of
    19  patients; and
    20    4. The basic principles of staffing in the health care setting  should
    21  be  based  on  the  patient's  care  needs,  the  severity of condition,
    22  services needed and the complexity surrounding those services.
    23    § 2828. Safe staffing; definitions. The following words  and  phrases,
    24  as  used  in  this article, shall have the following meanings unless the
    25  context otherwise plainly requires:
    26    1. "Acute care facility" shall mean a hospital other than  a  residen-
    27  tial  health  care  facility  and  shall  also include any facility that
    28  provides health care services pursuant to the mental hygiene law,  arti-
    29  cle nineteen-G of the executive law or the correction law if such facil-
    30  ity  is operated by the state or a political subdivision of the state or
    31  a public authority or public benefit corporation.
    32    2. "Acuity system" shall mean an  established  measurement  instrument
    33  which  (a)  predicts  nursing  care requirements for individual patients
    34  based on severity of patient illness, need for specialized equipment and
    35  technology,  intensity  of  nursing  interventions  required,  and   the
    36  complexity  of clinical nursing judgment needed to design, implement and
    37  evaluate the patient's nursing care plan;  (b)  details  the  amount  of
    38  nursing  care  needed, both in number of direct-care nurses and in skill
    39  mix of nursing personnel required, on a daily basis, for each patient in
    40  a nursing department or unit; and (c) is stated in  terms  that  readily
    41  can  be  used  and  understood  by direct-care nurses. The acuity system
    42  shall take into consideration the patient  care  services  provided  not
    43  only  by  registered  professional nurses but also by licensed practical
    44  nurses, social workers and other health care personnel.
    45    3. "Assessment tool" shall mean a measurement system that compares the
    46  staffing level in each nursing department or unit against actual patient
    47  nursing care requirements in order to review the accuracy of  an  acuity
    48  system.
    49    4.  "Direct-care nurse" and "direct-care nursing staff" shall mean any
    50  nurse who has principal responsibility to oversee or carry  out  medical
    51  regimens, nursing or other bedside care for one or more patients.
    52    5.  "Documented  staffing  plan"  shall  mean  a detailed written plan
    53  setting forth the minimum number and classification of direct-care nurs-
    54  es required in each nursing department or unit in an acute care facility
    55  for a given year, based  on  reasonable  projections  derived  from  the
    56  patient  census  and average acuity level within each department or unit

        A. 1532                             3
 
     1  during the prior year, the department or unit size  and  geography,  the
     2  nature of services provided and any foreseeable changes in department or
     3  unit size or function during the current year.
     4    6.  "Nurse"  shall  mean  a  registered professional nurse or licensed
     5  practical nurse licensed pursuant to article one hundred thirty-nine  of
     6  the education law.
     7    7.  "Nursing care" shall mean that care which is within the definition
     8  of the practice of nursing pursuant to section sixty-nine hundred two of
     9  the education law, or otherwise encompassed with the  recognized  stand-
    10  ards of nursing practice, including assessment, nursing diagnosis, plan-
    11  ning, intervention, evaluation and patient advocacy.
    12    8.  "Safe  staffing  requirements"  shall  mean the provisions of this
    13  section and sections  twenty-eight  hundred  twenty-seven,  twenty-eight
    14  hundred  twenty-nine,  twenty-eight hundred thirty, twenty-eight hundred
    15  thirty-one, twenty-eight hundred thirty-two, twenty-eight hundred  thir-
    16  ty-three,  twenty-eight  hundred  thirty-four  and  twenty-eight hundred
    17  thirty-five of this article and all rules and regulations adopted pursu-
    18  ant thereto.
    19    9. "Skill mix" shall mean the differences in licensing, specialty  and
    20  experience among direct-care nurses.
    21    10.  "Staffing level" shall mean the actual numerical nurse to patient
    22  ratio within a nursing department or unit.
    23    11. "Unit" shall mean a patient care  component,  as  defined  by  the
    24  department, within an acute care facility.
    25    12. "Non-nursing direct-care staff" shall mean any employee who is not
    26  a  nurse  or  other person licensed, certified or registered under title
    27  eight of the education law whose principal responsibility  is  to  carry
    28  out  patient care for one or more patients or provides direct assistance
    29  in the delivery of patient care.
    30    § 2829. Commissioner and council; powers and duties. The  commissioner
    31  shall:
    32    1.  appoint  an  acute  care  facility  council consisting of thirteen
    33  members. No less than seven members  shall  be  registered  professional
    34  nurses,  three  of whom shall be direct care registered nurses, three of
    35  whom shall be nurse managers and one of whom shall be a  nurse  adminis-
    36  trator.  No  less  than  two  members of the acute care facility council
    37  shall be representatives of recognized or certified collective  bargain-
    38  ing agents of non-nursing direct care staff. There shall be at least two
    39  representatives  of acute care facilities, one representative of a nurs-
    40  ing professional association, and one representative of a recognized  or
    41  certified  bargaining  agent  of nurses. The acute care facility council
    42  shall advise the commissioner in the development of regulations, includ-
    43  ing registered professional nurse to patient staffing  requirements  and
    44  non-nursing  direct-care  staff to patient ratios that are not specified
    45  in this article; the efficacy of acuity systems submitted  for  approval
    46  by the commissioner; the development of an assessment tool used to eval-
    47  uate the efficacy of acuity systems; and review and make recommendations
    48  on  approval  of  staffing  plans  prior to the granting of an operating
    49  certificate by the department.
    50    2. promulgate, after consultation with the acute care  facility  coun-
    51  cil,  the  rules and regulations necessary to carry out the purposes and
    52  provisions of the  safe  staffing  requirements,  including  regulations
    53  defining  terms,  setting  forth  direct-care  nurse  to patient ratios,
    54  setting forth  non-nursing  direct-care  staff  to  patient  ratios  and
    55  prescribing  the process for approving facility specific acuity systems;
    56  and

        A. 1532                             4
 
     1    3. assure that  the  provisions  of  safe  staffing  requirements  are
     2  enforced,  including  the  issuance  of  regulations  which at a minimum
     3  provide for an accessible and confidential system to report the  failure
     4  to  comply  with  such  requirements  and  public  access to information
     5  regarding  reports of inspections, results, deficiencies and corrections
     6  pursuant to such requirements.
     7    § 2830. Staffing requirements. 1. Staffing  requirements.  Each  acute
     8  care  facility shall ensure that it is staffed in a manner that provides
     9  sufficient, appropriately qualified direct-care nurses in  each  depart-
    10  ment  or  unit  within such facility in order to meet the individualized
    11  care needs of the patients therein. At a  minimum,  each  such  facility
    12  shall  meet  the  requirements  of  subdivisions  two  and three of this
    13  section.
    14    2. Staffing plan. The department shall not issue an operating  certif-
    15  icate  to  any acute care facility unless such facility annually submits
    16  to the department a documented staffing plan and a written certification
    17  that the submitted staffing plan is sufficient to provide  adequate  and
    18  appropriate delivery of health care services to patients for the ensuing
    19  year. The documented staffing plan shall:
    20    (a)  meet  the  minimum requirements set forth in subdivision three of
    21  this section;
    22    (b) be adequate to meet any additional requirements provided by  other
    23  laws, rules or regulations;
    24    (c)  employ  and identify an acuity system for addressing fluctuations
    25  in actual patient acuity levels and nursing care requirements  requiring
    26  increased staffing levels above the minimums set forth in the plan;
    27    (d)  factor  in  other unit or department activity such as discharges,
    28  transfers and admissions, staff  breaks,  meals,  routine  and  expected
    29  absences  from  the  unit  and administrative and support tasks that are
    30  expected to be done by direct-care nurses in addition to direct  nursing
    31  care;
    32    (e)  include  a  plan  to  meet necessary staffing levels and services
    33  provided by non-nursing direct-care staff in meeting patient care  needs
    34  pursuant to subdivision one of this section; provided, however, that the
    35  staffing  plan  shall  not incorporate or assume that nursing care func-
    36  tions required by laws, rules or regulations, or accepted  standards  of
    37  practice  to  be  performed by a registered professional nurse are to be
    38  performed by other personnel;
    39    (f) identify the system that will be used to document actual  staffing
    40  on a daily basis within each department or unit;
    41    (g)  include  a written assessment of the accuracy of the prior year's
    42  staffing plan in light of actual staffing needs;
    43    (h) identify each nurse staff classification referenced in  such  plan
    44  together  with a statement setting forth minimum qualifications for each
    45  such classification; and
    46    (i) be developed in consultation with a majority  of  the  direct-care
    47  nurses  within each department or unit or, where such nurses are repres-
    48  ented, with the applicable recognized or certified collective bargaining
    49  representative or representatives of the direct-care nurses and of other
    50  supportive and assistive staff.
    51    3. Minimum staffing requirements. (a)  The  documented  staffing  plan
    52  shall  incorporate, at a minimum, the following direct-care nurse-to-pa-
    53  tient ratios:
    54    (i) one nurse to one patient:  operating  room  and  trauma  emergency
    55  units  and  maternal/child  care  units for the second or third stage of
    56  labor;

        A. 1532                             5
 
     1    (ii) one nurse to two patients:   maternal/child care  units  for  the
     2  first  stage  of  labor, and all critical care areas including emergency
     3  critical care and all intensive care units and postanesthesia units;
     4    (iii)  one nurse to three patients: antepartum, emergency room, pedia-
     5  trics, step-down and telemetry units and units for newborns and interme-
     6  diate care nursery units;
     7    (iv) one nurse to three patients:    postpartum  mother/baby  couplets
     8  (maximum six patients per nurse);
     9    (v)  one  nurse  to  four  patients: non-critical antepartum patients,
    10  postpartum mother only units and medical/surgical and acute care psychi-
    11  atric units;
    12    (vi) one nurse to five patients:  rehabilitation  units  and  subacute
    13  patients; and
    14    (vii) one nurse to six patients: well-baby nursery units.
    15    For any units not listed in this paragraph, including, but not limited
    16  to,  psychiatric  units,  and acute care facilities operated pursuant to
    17  the mental hygiene law or  the  correction  law,  the  department  shall
    18  establish  by  regulation  the  appropriate direct-care nurse-to-patient
    19  ratio.
    20    (b) The nurse-to-patient ratios set forth in  paragraph  (a)  of  this
    21  subdivision  shall  reflect  the  maximum number of patients that may be
    22  assigned to each direct-care nurse in a unit at any one time.
    23    (c) There shall be no averaging of the  number  of  patients  and  the
    24  total  number  of  nurses  on the unit during any one shift nor over any
    25  period of time.
    26    (d) The commissioner, in consultation with  the  acute  care  facility
    27  council,  shall  establish  regulations providing for the maintenance of
    28  minimum nurse-to-patient ratios, as set forth in this section, including
    29  during routine or expected absences from the  unit,  such  as  meals  or
    30  breaks.
    31    4. Licensed practical nurses. In any situation in which licensed prac-
    32  tical  nurses are included in the documented staffing plan, any patients
    33  assigned to the licensed practical  nurse  shall  also  be  included  in
    34  calculating  the  number  of patients assigned to any registered profes-
    35  sional nurse who is required by law, rule, regulation, contract or prac-
    36  tice to supervise or oversee the direct-nursing  care  provided  by  the
    37  licensed practical nurse.
    38    5. Skill mix. The skill mix shall not incorporate or assume that nurs-
    39  ing  care  functions  required  by section sixty-nine hundred two of the
    40  education law or accepted standards of practice to  be  performed  by  a
    41  registered  professional nurse are to be performed by a licensed practi-
    42  cal nurse or unlicensed assistive personnel, or that nursing care  func-
    43  tions required by section sixty-nine hundred two of the education law or
    44  accepted  standards  of practice to be performed by a licensed practical
    45  nurse are to be performed by unlicensed assistive personnel.
    46    6. Adjustments by facility.   The  minimum  staffing  requirement  and
    47  nurse-to-patient  ratio  set  forth in this section shall be adjusted by
    48  the acute care facility as necessary to reflect the need for  additional
    49  direct-care  nurses.    Additional staff shall be assigned in accordance
    50  with the approved, facility-specific patient acuity system for determin-
    51  ing nursing care requirements, including the severity  of  the  illness,
    52  the  need  for  specialized  equipment and technology, the complexity of
    53  clinical judgment needed to design, implement and evaluate  the  patient
    54  care  plan  and  the  ability  for  self-care,  and the licensure of the
    55  personnel required for care.

        A. 1532                             6
 
     1    7. Commissioner regulations.    The  commissioner  may  by  regulation
     2  require  a  documented  staffing  plan  to  have higher nurse-to-patient
     3  ratios than those set forth in this section.
     4    8.   Nothing contained in this section shall supersede or diminish the
     5  terms of a collective bargaining agreement that  provides  for  staffing
     6  ratios that exceed the ratios established under this section.
     7    §  2831.  Compliance  with  staffing plan and recordkeeping. 1.   Each
     8  acute care facility shall at all times  staff  in  accordance  with  its
     9  documented staffing plan and the staffing standards set forth in section
    10  twenty-eight  hundred  thirty  of  this article; provided, however, that
    11  nothing in this section shall be deemed to preclude  any  such  facility
    12  from  implementing  higher direct-care nurse-to-patient staffing levels,
    13  nor shall the  requirements  set  forth  in  such  section  twenty-eight
    14  hundred  thirty  of  this  article be deemed to supersede or replace any
    15  higher requirements otherwise mandated by law, regulation or contract.
    16    2. For purposes of compliance with the minimum  staffing  requirements
    17  standards set forth in section twenty-eight hundred thirty of this arti-
    18  cle,  no  nurse  shall  be assigned, or included in the nurse-to-patient
    19  ratio count in a nursing unit or a clinical area within  an  acute  care
    20  facility  unless that nurse has an appropriate license pursuant to arti-
    21  cle one hundred thirty-nine of the education  law,  has  received  prior
    22  orientation  in that clinical area sufficient to provide competent nurs-
    23  ing care to the patients in that unit or clinical area, and  has  demon-
    24  strated  current  competence  in providing care in that unit or clinical
    25  area. Acute care facilities  that  utilize  temporary  nursing  agencies
    26  shall  have  and  adhere  to  a written procedure to orient and evaluate
    27  personnel from such sources to ensure adequate orientation and competen-
    28  cy prior to inclusion in the nurse-to-patient ratio.  In the event of an
    29  emergency staffing situation in which insufficient staffing may lead  to
    30  unsafe  patient  care, nurses may be temporarily assigned to a different
    31  unit or clinical area, provided  that  such  nurses  shall  be  assigned
    32  patients  appropriate  to their skill and competency level. The facility
    33  shall establish a consistent  plan  for  addressing  emergency  staffing
    34  situations  and  monitor  outcomes.   Emergencies are defined as natural
    35  disasters, declared emergencies, mass casualty incidents or other events
    36  not reasonably anticipated and planned for and not  regularly  occurring
    37  within the facility.
    38    3.  Each  acute  care  facility  shall maintain accurate daily records
    39  showing:
    40    (a) the number of patients admitted,  released  and  present  in  each
    41  nursing department or unit within such facility;
    42    (b)  the individual acuity level of each patient present in each nurs-
    43  ing department or unit within such facility; and
    44    (c) the identity and duty hours of  each  direct-care  nurse  in  each
    45  nursing department or unit within such facility.
    46    4.  Each acute care facility shall maintain daily statistics, by nurs-
    47  ing department and unit, of mortality, morbidity,  infection,  accident,
    48  injury and medical errors.
    49    5.  All  records required to be kept pursuant to this section shall be
    50  maintained for a period of seven years.
    51    6. All records required to be kept pursuant to this section  shall  be
    52  made  available  upon  request  to  the  department  and  to the public;
    53  provided, however, that information released to the public shall  comply
    54  with  the  applicable  patient  privacy laws, rules and regulations, and
    55  that in facilities operated pursuant to the correction law the  identity
    56  and hours of staff shall not be released to the public.

        A. 1532                             7
 
     1    §  2832. Work assignment policy. 1. General.  Each acute care facility
     2  shall adopt, disseminate to direct-care nurses and comply with a written
     3  work assignment policy, that meets the requirements of subdivisions  two
     4  and  three  of  this  section, detailing the circumstances under which a
     5  direct-care nurse may refuse a work assignment.
     6    2.  Minimum conditions. At a minimum, the work assignment policy shall
     7  permit a direct-care nurse to refuse an assignment:
     8    (a) for which the nurse is not  prepared  by  education,  training  or
     9  experience  to  safely  fulfill  the  assignment without compromising or
    10  jeopardizing patient safety, the nurse's  ability  to  meet  foreseeable
    11  patient needs or the nurse's license; or
    12    (b) would otherwise violate the safe staffing requirements.
    13    3.  Minimum procedures. At a minimum, the work assignment policy shall
    14  contain procedures for the following:
    15    (a) reasonable requirements for prior notice to the nurse's supervisor
    16  regarding the nurse's request and supporting reasons for being  relieved
    17  of an assignment or continued duty;
    18    (b)  where  feasible,  an opportunity for the supervisor to review the
    19  specific conditions supporting the nurse's request, and to decide wheth-
    20  er to remedy the conditions, to relieve the nurse of the assignment,  or
    21  to  deny the nurse's request to be relieved of the assignment or contin-
    22  ued duty;
    23    (c) a process that permits the nurse to exercise the right  to  refuse
    24  the  assignment  or  continued on-duty status when the supervisor denies
    25  the request to be relieved if:
    26    (i) the supervisor rejects the request without proposing a  remedy  or
    27  the proposed remedy would be inadequate or untimely,
    28    (ii)  the complaint and investigation process with a regulatory agency
    29  would be untimely to address the concern, and
    30    (iii) the employee in good faith believes that  the  assignment  meets
    31  conditions justifying refusal; and
    32    (d)  recognition  that a nurse who refuses an assignment pursuant to a
    33  work assignment policy as set forth in this section shall not be deemed,
    34  by reason thereof, to have engaged in negligent or  incompetent  action,
    35  patient  abandonment,  or otherwise to have violated any law relating to
    36  nursing.
    37    § 2833. Public disclosure of staffing requirements. Every  acute  care
    38  facility shall:
    39    1.  post  in  a  conspicuous  place  readily accessible to the general
    40  public a notice prepared by the department setting forth  a  summary  of
    41  the safe staffing requirements applicable to that facility together with
    42  information about where detailed information about the facility's staff-
    43  ing plan and actual staffing may be obtained;
    44    2.  upon  request,  make  copies of the documented staffing plan filed
    45  with the department available to the public; and
    46    3. upon request make readily available to the nursing staff  within  a
    47  department or unit, during each work shift, the following information:
    48    (a) a copy of the current staffing plan for that department or unit,
    49    (b)  documentation  of the number of direct-care nurses required to be
    50  present during the shift, based on the approved adopted  acuity  system,
    51  and
    52    (c)  documentation  of the actual number of direct-care nurses present
    53  during the shift.
    54    § 2834. Enforcement responsibilities. The department shall  not  dele-
    55  gate  its  responsibilities  to  enforce  the safe staffing requirements
    56  promulgated pursuant to this article.

        A. 1532                             8

     1    § 2835. Private right of action for violations of section twenty-eight
     2  hundred thirty-two of this  article.    Any  acute  care  facility  that
     3  violates  the  rights of an employee pursuant to an adopted work assign-
     4  ment policy under section twenty-eight hundred thirty-two of this  arti-
     5  cle  may be held liable to such employee in an action brought in a court
     6  of competent jurisdiction for such legal or equitable relief as  may  be
     7  appropriate  to  effectuate  the  purposes of the safe staffing require-
     8  ments, including but not limited to reinstatement, promotion, lost wages
     9  and benefits, and compensatory and consequential damages resulting  from
    10  the  violation  together with an equal amount in liquidated damages. The
    11  court in such action shall, in addition to any  judgment  awarded  to  a
    12  prevailing  plaintiff,  award  reasonable  attorneys'  fees and costs of
    13  action to be paid by the defendant. An employee's right to  institute  a
    14  private  action pursuant to this subdivision shall not be limited by any
    15  other right granted by the safe staffing requirements.
    16    § 4. Section 2801-a of the public health law is amended  by  adding  a
    17  new subdivision 3-b to read as follows:
    18    3-b. In considering character, competence and standing in the communi-
    19  ty under subdivision three of this section, the public health and health
    20  planning  council shall consider any past violations of state or federal
    21  rules, regulations or statutes relating to employer-employee  relations,
    22  workplace safety, collective bargaining or any other labor related prac-
    23  tices, obligations or imperatives. The public health and health planning
    24  council shall give substantial weight to violations of the provisions of
    25  this chapter concerning nurse staff and supportive staff ratios.
    26    §  5. Section 2805 of the public health law is amended by adding a new
    27  subdivision 3 to read as follows:
    28    3. In determining whether to issue or renew an  operating  certificate
    29  to  an applicant seeking to operate, or operating, a hospital in accord-
    30  ance with  this  article,  the  commissioner  shall  consider  any  past
    31  violations  of  state or federal rules, regulations or statutes relating
    32  to employer-employee relations, workplace safety, collective  bargaining
    33  or  any  other  labor related practices, obligations or imperatives. The
    34  public health and health planning council shall give substantial  weight
    35  to  violations  of the provisions of this chapter concerning nurse staff
    36  and supportive staff ratios.
    37    § 6. The public health law is amended by adding a new  section  2895-b
    38  to read as follows:
    39    §  2895-b.  Residential health care facility staffing levels. 1. Defi-
    40  nitions. As used in this section, the following  terms  shall  have  the
    41  following meanings:
    42    (a)  "Certified  nurse aide" means any person included in the residen-
    43  tial health care facility nurse aide registry pursuant to section  twen-
    44  ty-eight hundred three-j of this chapter.
    45    (b)  "Staffing ratio" means the quotient of the number of personnel in
    46  a particular category regularly on duty for a particular time period  in
    47  a nursing home divided by the number of residents of the nursing home at
    48  that time.
    49    2.  Commissioner  and residential health care facility council; powers
    50  and duties. The commissioner shall: Appoint a  residential  health  care
    51  facility  council  consisting  of  thirteen  members.  No  less than two
    52  members shall be direct  care licensed practical nurses,  no  less  than
    53  two  members shall be direct care certified nurse assistants and no less
    54  than  one member shall be a direct care registered  professional  nurse.
    55  The  council  shall also include no less than one representative each of
    56  recognized or certified collective bargaining agents of registered nurs-

        A. 1532                             9
 
     1  es, of non-registered nurse direct care staff and  a  representative  of
     2  nursing  professional  associations.  The  council shall also include no
     3  less than two representatives of residential health care facility opera-
     4  tors,  two  representatives  of  residential  health care facility nurse
     5  administrators and one  representative  of  consumers.  The  residential
     6  health care facility council shall advise the commissioner in the devel-
     7  opment  of  regulations  relating  to  the staffing standards under this
     8  section; and may from time to time, report to the governor, the legisla-
     9  ture, the public and  the  commissioner  any  recommendations  regarding
    10  staffing levels in residential health care facilities.
    11    3. Staffing standards.  (a) The commissioner, in consultation with the
    12  council, shall, by regulation, establish staffing standards for residen-
    13  tial  health  care  facility  minimum staffing levels to meet applicable
    14  standards of service and care and to provide services to attain or main-
    15  tain the highest practicable physical, mental, and psychosocial well-be-
    16  ing of each resident  of  the  facility.  The  commissioner  shall  also
    17  require  by regulation that every residential health care facility main-
    18  tain records on its staffing levels,  report  on  such  records  to  the
    19  department,  and  make  such  records  available  for  inspection by the
    20  department.
    21    (b) Every residential health care facility shall:
    22    (i) comply with the staffing standards under this section; and
    23    (ii) employ sufficient staffing levels to meet applicable standards of
    24  service and care and to provide service and care and to provide services
    25  to attain or maintain the  highest  practicable  physical,  mental,  and
    26  psychosocial well-being of each resident of the facility.
    27    (c)  Subject  to  subdivision five of this section, staffing standards
    28  under this section shall, at a minimum, be the staffing standards  under
    29  subdivision four of this section.
    30    (d)  In  determining compliance with the staffing standards under this
    31  section, an individual shall not be counted  while  performing  services
    32  that  are not direct nursing care, such as administrative services, food
    33  preparation,  housekeeping,  laundry,  maintenance  services,  or  other
    34  activities that are not direct nursing care.
    35    4.    Statutory standard. Beginning two years after the effective date
    36  of this section, every residential health care facility shall maintain a
    37  staffing ratio equal to at least the following:
    38    (a) 2.8 hours of care per resident per day by a certified nurse aide;
    39    (b) 1.3 hours of care per resident per day  by  a  licensed  practical
    40  nurse or a registered nurse;
    41    (c) 0.75 hours of care per resident per day by a registered nurse; the
    42  minimum  of  0.75  hours  of  care per resident provided by a registered
    43  nurse shall be divided among all shifts to ensure an  appropriate  level
    44  of  registered  nurse care twenty-four hours per day, seven days a week,
    45  to meet resident needs; and
    46    (d) Residential health care facilities that care for subacute patients
    47  shall maintain at a minimum, the following direct-care  nurse-to-patient
    48  ratio: one nurse to five patients.
    49    5.    Any residential health care facility that violates the rights of
    50  an employee pursuant to an adopted work  assignment  policy  under  this
    51  section  may  be  held liable to such employee in an action brought in a
    52  court of competent jurisdiction for such legal or  equitable  relief  as
    53  may  be  appropriate  to  effectuate  the  purposes of the safe staffing
    54  requirements, including but not  limited  to  reinstatement,  promotion,
    55  lost  wages  and  benefits,  and  compensatory and consequential damages
    56  resulting from the violation together with an equal amount in liquidated

        A. 1532                            10
 
     1  damages. The court in such action shall, in  addition  to  any  judgment
     2  awarded  to a prevailing plaintiff, award reasonable attorneys' fees and
     3  costs of action to be paid by the  defendant.  An  employee's  right  to
     4  institute  a  private  action  pursuant to this subdivision shall not be
     5  limited by any other right granted by the safe staffing requirements.
     6    6. Public disclosure of staffing levels. (a) A residential health care
     7  facility shall post information regarding nurse staffing that the facil-
     8  ity is required to make available to the public  under  section  twenty-
     9  eight  hundred five-t of this chapter.  Information under this paragraph
    10  shall be displayed in a form approved by the department and be posted in
    11  a manner which is visible and accessible to  residents,  their  families
    12  and the staff, as required by the commissioner.
    13    (b)  A  residential  health care facility shall post a summary of this
    14  section, provided by  the  department,  in  proximity  to  each  posting
    15  required by paragraph (a) of this subdivision.
    16    § 7. If any provision of this act, or any application of any provision
    17  of  this  act,  is held to be invalid, or ruled by any federal agency to
    18  violate or be inconsistent with any  applicable  federal  law  or  regu-
    19  lation, that shall not affect the validity or effectiveness of any other
    20  provision  of  this act, or of any other application of any provision of
    21  this act.
    22    § 8. This act shall take effect on the one hundred eightieth day after
    23  it shall have become a law, provided that any rules and regulations, and
    24  any other actions necessary to implement the provisions of this  act  on
    25  its  effective  date  are  authorized and directed to be completed on or
    26  before such date.
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