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S03023 Summary:

Add Art 28-F §§2899-aa - 2899-ee, Pub Health L
Establishes the "Safe Staffing for Hospital Care Act"; establishes minimum staffing levels for various health care workers in different health care facilities; requires submission of staffing plans; prohibits most mandatory overtime.
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S03023 Actions:

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S03023 Memo:

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S03023 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                    IN SENATE
                                    January 27, 2021
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
        AN ACT to amend the public health law, in relation to  establishing  the
          "safe staffing for hospital 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 as the "safe  staffing
     2  for hospital care act".
     3    § 2. Legislative findings and intent. The legislature hereby finds and
     4  declares  that  the  state  has  a substantial interest in assuring that
     5  delivery of healthcare services to  patients  in  healthcare  facilities
     6  located  within  this  state  is  adequate  and safe and that healthcare
     7  facilities retain sufficient nursing staff  so  as  to  promote  optimal
     8  healthcare  outcomes.  Recent  changes in our healthcare delivery system
     9  are resulting in a higher acuity  level  among  patients  in  healthcare
    10  facilities.  Inadequate  hospital  staffing results in dangerous medical
    11  errors and patient infections. Inadequate  and  poorly  monitored  nurse
    12  staffing practices can adversely impact the health of patients who enter
    13  hospitals  and  outpatient emergency and surgical centers. A substantial
    14  number of nurses indicate that hospital-patient acuity measurements  are
    15  inadequate  and  that many hospitals rarely, if ever, staff according to
    16  an acuity measurement tool. Hospital nurses  work  substantial  overtime
    17  hours  and  nurses  working  twelve-hour shifts work the most additional
    18  overtime hours per week. Mandatory overtime and lengthy work  hours  for
    19  direct-care  nurses  constitute  a  threat  to  the health and safety of
    20  patients, adversely impact the general well-being of nurses  and  result
    21  in  greater  turnover,  which  increases  long-term  shortage of nursing
    22  personnel. Establishing staffing standards will ensure  that  healthcare
    23  facilities  throughout the state operate in a manner that guarantees the
    24  public safety and the  delivery  of  quality  healthcare  services.  The
    25  intent  of this act is to protect the health and safety of the residents
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 3023                             2
     1  of New York state by ensuring adequate protection and care for  patients
     2  in healthcare facilities.
     3    §  3. The public health law is amended by adding a new article 28-F to
     4  read as follows:
     5                                ARTICLE 28-F
     6                       SAFE STAFFING FOR HOSPITAL CARE
     7  Section 2899-aa. Facility staffing standard.
     8          2899-bb. Compliance with plan and recordkeeping.
     9          2899-cc. Mandatory overtime and excessive duty hours.
    10          2899-dd. Employee rights.
    11          2899-ee. Enforcement.
    12    § 2899-aa. Facility  staffing  standard.  1.  Each  facility  licensed
    13  pursuant  to  this  article  shall ensure that it is staffed in a manner
    14  that provides sufficient, appropriately qualified nursing staff of  each
    15  classification  in  each department or unit within the facility in order
    16  to meet the individualized care needs of patients.
    17    2. Notwithstanding any law to the contrary, as a condition of  licens-
    18  ing,  each  healthcare facility licensed within the state shall annually
    19  submit to the department a documented  staffing  plan  together  with  a
    20  written  certification  that  the staffing plan is sufficient to provide
    21  adequate and appropriate delivery of healthcare services to patients for
    22  the ensuing year. The staffing plan must:
    23    (a) Meet the minimum requirements established in subdivision three  of
    24  this section.
    25    (b)  Be adequate to meet any additional requirements provided by other
    26  laws or regulations.
    27    (c) Employ and identify an approved acuity system for addressing fluc-
    28  tuations in actual patient acuity levels and nursing  care  requirements
    29  requiring  increased staffing levels above the minimums set forth in the
    30  plan.
    31    (d) Factor in other unit  or  department  work,  such  as  discharges,
    32  transfers  and admissions, and administrative and support tasks, that is
    33  expected to be done by direct-care nurses in addition to direct  nursing
    34  care.
    35    (e)  Identify  the  assessment tool used to validate the acuity system
    36  relied on in the plan.
    37    (f) Identify the system that will be used to document actual  staffing
    38  on a daily basis within each department or unit.
    39    (g)  Include  a written assessment of the accuracy of the prior year's
    40  staffing plan in light of actual staffing needs.
    41    (h)  Identify  each  nurse  staff  classification  referenced  therein
    42  together  with a statement setting forth minimum qualifications for each
    43  such classification.
    44    (i) Be developed in consultation with the  direct-care  nursing  staff
    45  within each department or unit or, where such staff is represented, with
    46  the  applicable  recognized or certified collective bargaining represen-
    47  tative or representatives of the direct-care nursing staff.
    48    3. The healthcare facility's staffing  plan  must  incorporate,  at  a
    49  minimum,  the  following  direct-care nurse-to-patient ratios: pediatric
    50  recovery room--one to one, operating room circulating nurse--one to one,
    51  special procedures (e.g. cath lab, radiology,  endoscopy)--one  to  one,
    52  trauma--one  to  one,  burn unit--one to two, critical care--one to two,
    53  labor and delivery--one to two, adult recovery room--one to  two,  emer-
    54  gency  room--one to three, oncology/chemotherapy--one to three, interme-

        S. 3023                             3
     1  diate care unit--one to  three,  telemetry--one  to  three,  mother/baby
     2  couplets  and  normal post-partum--one to four, pediatrics--one to four,
     3  psychiatric unit--one to four, adult medical-surgical unit--one to six.
     4    4.  The  department  shall  adopt  regulations that establish minimum,
     5  specific,  numerical  direct-care  nurse-to-patient  ratios  for   other
     6  healthcare  facility nursing departments and units that must be incorpo-
     7  rated into the staffing plan.
     8    5. The minimum numbers of direct-care nurse-to-patient staff set forth
     9  in this section shall constitute  the  minimum  numbers  of  direct-care
    10  nursing  staff that shall be assigned to and be present within a nursing
    11  department or unit. Where the approved  acuity  system  adopted  by  the
    12  facility  indicates  that  additional  staff is required, the healthcare
    13  facility must staff at the higher staffing level.
    14    6. The skill mix reflected in a staffing plan must assure that all  of
    15  the following elements of the nursing process are performed in the plan-
    16  ning and delivery of care for each patient:
    17    (a)  Assessment, nursing diagnosis, planning, intervention, evaluation
    18  and patient advocacy.
    19    (b) Registered nurses must constitute at least fifty  percent  of  the
    20  direct-care nurses included in the staffing plan.
    21    (c)  The  skill  mix  may  not incorporate or assume that nursing care
    22  functions required by licensing law or regulations or accepted standards
    23  of practice to be performed by a licensed nurse are to be  performed  by
    24  unlicensed personnel.
    25    7.  The  department  shall adopt regulations prescribing the method by
    26  which it will approve a healthcare facility's acuity system. Such  regu-
    27  lations may include a system for class approval of acuity systems.
    28    § 2899-bb. Compliance with plan and recordkeeping. 1.  Notwithstanding
    29  any  law  to  the  contrary,  as  a condition of licensing, a healthcare
    30  facility licensed within the state must at all times staff in accordance
    31  with its staffing plan and the staffing standards  established  pursuant
    32  to  this article, provided, however, that nothing herein shall be deemed
    33  to preclude a healthcare facility from implementing  higher  direct-care
    34  nurse-to-patient staffing levels.
    35    2.  No  nurse  shall be assigned, or included in the count of assigned
    36  nursing staff for purposes of compliance with minimum staffing  require-
    37  ments,  in  a  nursing  department or unit or a clinical area within the
    38  healthcare facility without appropriate  licensing,  prior  orientation,
    39  and  verification that the nurse is capable of providing competent nurs-
    40  ing care to the patients therein.
    41    3. As a condition of  licensure,  each  healthcare  facility  licensed
    42  pursuant to this article shall maintain accurate daily records showing:
    43    (a)  The  number  of  patients  admitted, released and present in each
    44  nursing department or unit within the facility.
    45    (b) The individual acuity level of each patient present in each  nurs-
    46  ing department or unit within the facility.
    47    (c)  The  identity  and  duty  hours of each direct-care nurse in each
    48  nursing department or unit within the facility.
    49    4. Notwithstanding any law to the contrary, as a condition  of  licen-
    50  sure,  each healthcare facility licensed within the state shall maintain
    51  daily statistics, by nursing department and unit, of mortality, morbidi-
    52  ty, infection, accident, injury and medical errors.
    53    5. All records required to be kept pursuant to this section  shall  be
    54  maintained for a period of seven years.
    55    6.  All  records required to be kept pursuant to this section shall be
    56  made available upon  request  to  the  department  and  to  the  public,

        S. 3023                             4
     1  provided,  however,  that  information  released to the public shall not
     2  contain the name or other personal identifying information,  apart  from
     3  acuity level, about any individual patient.
     4    §  2899-cc.  Mandatory  overtime  and excessive duty hours.  1. Except
     5  during a state of emergency  declared  by  the  governor,  a  healthcare
     6  facility may not mandate or otherwise require, directly or indirectly, a
     7  healthcare employee to work or be in on-duty status in excess of any one
     8  of the following:
     9    (a) The scheduled work shift or duty period.
    10    (b) Twelve hours in a twenty-four-hour period.
    11    (c) Eighty hours in a consecutive fourteen-day period.
    12    "Mandate"  for  the  purposes  of  this  subdivision means any request
    13  which, if refused or declined by the healthcare employee, may result  in
    14  discharge,  discipline,  loss  of promotion, or other adverse employment
    15  consequence. Nothing in this section is intended to prohibit  a  health-
    16  care employee from voluntarily working overtime.
    17    2. Except during a state of emergency declared by the governor:
    18    (a)  No healthcare employee may work or be in on-duty status more than
    19  sixteen hours in any twenty-four-hour period.
    20    (b) Any healthcare employee working sixteen hours in any  twenty-four-
    21  hour  period  must have at least eight consecutive hours off duty before
    22  being required to return to duty.
    23    (c) No healthcare employee may be required to work or be on-duty  more
    24  than  seven  consecutive  days  without at least one consecutive twenty-
    25  four-hour period off duty within that time.
    26    3. A work shift schedule or overtime program established pursuant to a
    27  collective bargaining agreement negotiated on behalf of  the  healthcare
    28  employees  by  a  bona fide labor organization may provide for mandatory
    29  on-duty hours in excess of that permitted under this  section,  provided
    30  adequate measures are included in the agreement to ensure against exces-
    31  sive fatigue on the part of the affected employees.
    32    § 2899-dd. Employee rights. 1.  Notwithstanding any law to the contra-
    33  ry, as a condition of licensure, each healthcare facility licensed with-
    34  in  the state shall adopt and disseminate to direct-care nursing staff a
    35  written policy that complies with the requirements set forth in subdivi-
    36  sions two and three of this section, detailing the  circumstances  under
    37  which a direct-care nurse may refuse a work assignment.
    38    2. At a minimum, the work assignment policy shall permit a direct-care
    39  nurse to refuse an assignment for which:
    40    (a)  The nurse is not prepared by education, training or experience to
    41  safely fulfill  the  assignment  without  compromising  or  jeopardizing
    42  patient  safety,  the nurse's ability to meet foreseeable patient needs,
    43  or the nurse's license.
    44    (b) The nurse has volunteered to work overtime but determines that his
    45  or her level of fatigue and/or decreased alertness would  compromise  or
    46  jeopardize  patient  safety,  the  nurse's  ability  to meet foreseeable
    47  patient needs, or the nurse's license.
    48    (c) The assignment otherwise would  violate  requirements  established
    49  pursuant to this article.
    50    3.  At  a minimum, the work assignment policy shall contain procedures
    51  for the following:
    52    (a) Reasonable requirements for prior notice to a  nurse's  supervisor
    53  regarding  the nurse's request and supporting reasons for being relieved
    54  of an assignment or continued duty.
    55    (b) Where feasible, an opportunity for the supervisor  to  review  the
    56  specific conditions supporting the nurse's request, and to decide wheth-

        S. 3023                             5
     1  er  to remedy the conditions, to relieve the nurse of the assignment, or
     2  to deny the nurse's request to be relieved of the assignment or  contin-
     3  ued duty.
     4    (c)  A process which permits the nurse to exercise the right to refuse
     5  the assignment or continued on-duty status when  the  supervisor  denies
     6  the request to be relieved if:
     7    (i)  The supervisor rejects the request without proposing a remedy, or
     8  the proposed remedy would be inadequate or untimely.
     9    (ii) The complaint and investigation process with the department would
    10  be untimely to address the concern.
    11    (iii) The employee in good faith believes that  the  assignment  meets
    12  conditions justifying refusal.
    13    4.  An employee is deemed to act in good faith if the employee reason-
    14  ably believes that the information reported or disclosed  is  true,  and
    15  that  a  violation  has  occurred  or  may  occur. A healthcare facility
    16  covered by this article shall not penalize, discriminate or retaliate in
    17  any manner against an employee  with  respect  to  compensation,  terms,
    18  conditions  or privileges of employment, who in good faith, individually
    19  or in conjunction with another person or persons:
    20    (a) Reports a violation or suspected violation of this  section  to  a
    21  public  regulatory  agency,  a private accreditation body, or management
    22  personnel of the healthcare facility,
    23    (b) Initiates, cooperates or otherwise  participates  in  an  investi-
    24  gation  or proceeding brought by a regulatory agency or private accredi-
    25  tation body concerning matters covered by this section,
    26    (c) Informs or discusses with other employees, with representative  or
    27  representatives  of  the  employees,  with patients or patient represen-
    28  tatives, or with the public, violations or suspected violations of  this
    29  section, or
    30    (d)  Otherwise  avails  himself  or  herself of the rights established
    31  pursuant to this article.
    32    § 2899-ee. Enforcement. 1. Notwithstanding any right of action granted
    33  to any governmental body pursuant to this article, any  person  who  has
    34  been  injured  by  reason  of  a  violation of this article may bring an
    35  action in his or her own name to enjoin such unlawful act, or an  action
    36  to recover his or her actual damages, or both such actions.
    37    2.  This  article  shall  be  enforced  by the commissioner, who shall
    38  promulgate such regulations as are necessary to implement and administer
    39  compliance. Regulations shall include procedures  to  receive,  investi-
    40  gate,  and attempt to resolve complaints, and bring actions in any court
    41  of competent jurisdiction to recover appropriate  relief  for  aggrieved
    42  employees.
    43    3. No healthcare facility shall discharge, demote, harass or otherwise
    44  take  adverse  actions  against  any  individual because such individual
    45  seeks to enforce this article, or testifies, assists or participates  in
    46  any  manner  in an investigation, hearing or other proceeding to enforce
    47  this article.
    48    4. In any action under this article in which an employee prevails:
    49    (a) The employee shall be awarded monetary relief, including back  pay
    50  in an amount equal to the difference between the employee's actual earn-
    51  ings  and  what  the  employee  would have earned but for the healthcare
    52  facility's unlawful practices, and  an  additional  amount  in  punitive
    53  damages, as appropriate.
    54    (b)  The  healthcare  facility  shall  be  enjoined from continuing to
    55  violate the provisions of this article and may be ordered to  take  such

        S. 3023                             6
     1  additional  affirmative  steps  as are necessary to ensure an end to the
     2  unlawful practices.
     3    (c)  The  healthcare  facility  shall pay a reasonable attorney's fee,
     4  reasonable expert witness fees, and other costs of the action.
     5    § 4. This act shall take effect on the first of July  next  succeeding
     6  the date on which it shall have become a law.  Effective immediately the
     7  addition,  amendment  and/or  repeal of any rule or regulation necessary
     8  for the implementation of this act on its effective date are  authorized
     9  to be made on or before such date.
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