Bill Text: NY A00108 | 2021-2022 | General Assembly | Amended


Bill Title: 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.

Spectrum: Moderate Partisan Bill (Democrat 92-12)

Status: (Introduced) 2021-02-17 - print number 108a [A00108 Detail]

Download: New_York-2021-A00108-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         108--A

                               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 --
          Multi-Sponsored by -- M. of A. BARNWELL, COOK,  CUSICK,  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

        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-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02466-07-1

        A. 108--A                           2

     1  tal service to be provided, the location and physical description of the
     2  institution, a documented staffing plan, as defined in  section  twenty-
     3  eight hundred twenty-nine of this article, and such other information as
     4  the department may require.
     5    (b)  An  operating  certificate  shall not be issued by the department
     6  unless it finds that  the  premises,  equipment,  personnel,  documented
     7  staffing  plan, rules and by-laws, standards of medical care, and hospi-
     8  tal service are fit and adequate and that the hospital will be  operated
     9  in  the manner required by this article and rules and regulations there-
    10  under.
    11    § 3. The public health law is amended  by  adding  nine  new  sections
    12  2828,  2829,  2830,  2831,  2832,  2833,  2834, 2835 and 2836 to read as
    13  follows:
    14    § 2828. Policy and purpose. The legislature finds and declares all  of
    15  the following:
    16    1.  Health  care  services are becoming complex and it is increasingly
    17  difficult for patients to access integrated services;
    18    2. The quality of patient care is jeopardized because of nurse  staff-
    19  ing shortages and improper utilization of nursing services;
    20    3.  To  ensure  the  adequate  protection  of  patients in health care
    21  settings, it is essential that qualified  registered  nurses  and  other
    22  licensed  nurses  be  accessible  and  available  to  meet  the needs of
    23  patients; and
    24    4. The basic principles of staffing in the health care setting  should
    25  be  based  on  the  patient's  care  needs,  the  severity of condition,
    26  services needed and the complexity surrounding those services.
    27    § 2829. Safe staffing; definitions. The following words  and  phrases,
    28  as  used  in  this article, shall have the following meanings unless the
    29  context otherwise plainly requires:
    30    1. "Hospital" shall mean a general hospital  under  this  article  and
    31  shall  also  include  any  facility  that  provides health care services
    32  pursuant to the mental hygiene law, article nineteen-G of the  executive
    33  law or the correction law if such facility is operated by the state or a
    34  political subdivision of the state or a public authority or public bene-
    35  fit corporation.
    36    2.  "Acuity  system"  shall mean an established measurement instrument
    37  which (a) predicts nursing care  requirements  for  individual  patients
    38  based on severity of patient illness, need for specialized equipment and
    39  technology,   intensity  of  nursing  interventions  required,  and  the
    40  complexity of clinical nursing judgment needed to design, implement  and
    41  evaluate  the  patient's  nursing  care  plan; (b) details the amount of
    42  nursing care needed, both in number of direct-care nurses and  in  skill
    43  mix of nursing personnel required, on a daily basis, for each patient in
    44  a  nursing  department  or unit; and (c) is stated in terms that readily
    45  can be used and understood by  direct-care  nurses.  The  acuity  system
    46  shall  take  into  consideration  the patient care services provided not
    47  only by registered professional nurses but also  by  licensed  practical
    48  nurses, social workers and other health care personnel.
    49    3. "Assessment tool" shall mean a measurement system that compares the
    50  staffing level in each nursing department or unit against actual patient
    51  nursing  care  requirements in order to review the accuracy of an acuity
    52  system.
    53    4. "Direct-care nurse" and "direct-care nursing staff" shall mean  any
    54  nurse  who  has principal responsibility to oversee or carry out medical
    55  regimens, nursing or other bedside care for one or more patients.

        A. 108--A                           3

     1    5. "Documented staffing plan"  shall  mean  a  detailed  written  plan
     2  setting forth the minimum number and classification of direct-care nurs-
     3  es required in each nursing department or unit in a hospital for a given
     4  year,  based  on  reasonable projections derived from the patient census
     5  and average acuity level within each department or unit during the prior
     6  year,  the department or unit size and geography, the nature of services
     7  provided and any foreseeable changes in department or unit size or func-
     8  tion during the current year.
     9    6. "Nurse" shall mean a  registered  professional  nurse  or  licensed
    10  practical  nurse licensed pursuant to article one hundred thirty-nine of
    11  the education law.
    12    7. "Nursing care" shall mean that care which is within the  definition
    13  of the practice of nursing pursuant to section sixty-nine hundred two of
    14  the  education  law, or otherwise encompassed with the recognized stand-
    15  ards of nursing practice, including assessment, nursing diagnosis, plan-
    16  ning, intervention, evaluation and patient advocacy.
    17    8. "Safe staffing requirements" shall  mean  the  provisions  of  this
    18  section  and  sections  twenty-eight  hundred  twenty-nine, twenty-eight
    19  hundred thirty, twenty-eight hundred  thirty-one,  twenty-eight  hundred
    20  thirty-two,  twenty-eight  hundred  thirty-three,  twenty-eight  hundred
    21  thirty-four, twenty-eight hundred thirty-five and  twenty-eight  hundred
    22  thirty-six  of this article and all rules and regulations adopted pursu-
    23  ant thereto.
    24    9. "Skill mix" shall mean the differences in licensing, specialty  and
    25  experience among direct-care nurses.
    26    10.  "Staffing level" shall mean the actual numerical nurse to patient
    27  ratio within a nursing department or unit.
    28    11. "Unit" shall mean a patient care  component,  as  defined  by  the
    29  department, within a hospital.
    30    12. "Non-nursing direct-care staff" shall mean any employee who is not
    31  a  nurse  or  other person licensed, certified or registered under title
    32  eight of the education law whose principal responsibility  is  to  carry
    33  out  patient care for one or more patients or provides direct assistance
    34  in the delivery of patient care.
    35    § 2830. Commissioner and council; powers and duties. The  commissioner
    36  shall:
    37    1.  appoint a hospital council consisting of thirteen members. No less
    38  than seven members shall be registered  professional  nurses,  three  of
    39  whom  shall  be  direct  care  registered nurses, three of whom shall be
    40  nurse managers and one of whom shall be a nurse administrator.  No  less
    41  than  two  members  of  the hospital council shall be representatives of
    42  recognized or certified  collective  bargaining  agents  of  non-nursing
    43  direct care staff. There shall be at least two representatives of hospi-
    44  tals,  one representative of a nursing professional association, and one
    45  representative of a recognized or certified bargaining agent of  nurses.
    46  The hospital council shall advise the commissioner in the development of
    47  regulations, including registered professional nurse to patient staffing
    48  requirements  and  non-nursing  direct-care staff to patient ratios that
    49  are not specified in  this  article;  the  efficacy  of  acuity  systems
    50  submitted  for  approval  by  the  commissioner;  the  development of an
    51  assessment tool used to evaluate the efficacy  of  acuity  systems;  and
    52  review  and  make recommendations on approval of staffing plans prior to
    53  the granting of an operating certificate by the department.
    54    2. promulgate, after consultation with the hospital council, the rules
    55  and regulations necessary to carry out the purposes  and  provisions  of
    56  the  safe  staffing  requirements, including regulations defining terms,

        A. 108--A                           4

     1  setting forth direct-care nurse to patient ratios,  setting  forth  non-
     2  nursing  direct-care staff to patient ratios and prescribing the process
     3  for approving facility specific acuity systems; and
     4    3.  assure  that  the  provisions  of  safe  staffing requirements are
     5  enforced, including the issuance  of  regulations  which  at  a  minimum
     6  provide  for an accessible and confidential system to report the failure
     7  to comply with  such  requirements  and  public  access  to  information
     8  regarding  reports of inspections, results, deficiencies and corrections
     9  pursuant to such requirements.
    10    § 2831. Staffing requirements. 1. Staffing requirements. Each hospital
    11  shall ensure that it is staffed in a manner  that  provides  sufficient,
    12  appropriately  qualified  direct-care  nurses in each department or unit
    13  within such facility in order to meet the individualized care  needs  of
    14  the  patients  therein.  At a minimum, each such facility shall meet the
    15  requirements of subdivisions two and three of this section.
    16    2. Staffing plan. The department shall not issue an operating  certif-
    17  icate  to  any  hospital  unless  such  facility annually submits to the
    18  department a documented staffing plan and a written  certification  that
    19  the submitted staffing plan is sufficient to provide adequate and appro-
    20  priate  delivery  of  health  care  services to patients for the ensuing
    21  year. The documented staffing plan shall:
    22    (a) meet the minimum requirements set forth in  subdivision  three  of
    23  this section;
    24    (b)  be adequate to meet any additional requirements provided by other
    25  laws, rules or regulations;
    26    (c) employ and identify an acuity system for  addressing  fluctuations
    27  in  actual patient acuity levels and nursing care requirements requiring
    28  increased staffing levels above the minimums set forth in the plan;
    29    (d) factor in other unit or department activity  such  as  discharges,
    30  transfers  and  admissions,  staff  breaks,  meals, routine and expected
    31  absences from the unit and administrative and  support  tasks  that  are
    32  expected  to be done by direct-care nurses in addition to direct nursing
    33  care;
    34    (e) include a plan to meet  necessary  staffing  levels  and  services
    35  provided  by non-nursing direct-care staff in meeting patient care needs
    36  pursuant to subdivision one of this section; provided, however, that the
    37  staffing plan shall not incorporate or assume that  nursing  care  func-
    38  tions  required  by laws, rules or regulations, or accepted standards of
    39  practice to be performed by a registered professional nurse  are  to  be
    40  performed by other personnel;
    41    (f)  identify the system that will be used to document actual staffing
    42  on a daily basis within each department or unit;
    43    (g) include a written assessment of the accuracy of the  prior  year's
    44  staffing plan in light of actual staffing needs;
    45    (h)  identify  each nurse staff classification referenced in such plan
    46  together with a statement setting forth minimum qualifications for  each
    47  such classification; and
    48    (i)  be  developed  in consultation with a majority of the direct-care
    49  nurses within each department or unit or, where such nurses are  repres-
    50  ented, with the applicable recognized or certified collective bargaining
    51  representative or representatives of the direct-care nurses and of other
    52  supportive and assistive staff.
    53    3.  Minimum  staffing  requirements.  (a) The documented staffing plan
    54  shall incorporate, at a minimum, the following direct-care  nurse-to-pa-
    55  tient ratios:

        A. 108--A                           5

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

        A. 108--A                           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    §  2832.  Compliance  with  staffing plan and recordkeeping. 1.   Each
     8  hospital shall at all times staff  in  accordance  with  its  documented
     9  staffing  plan  and  the staffing standards set forth in section twenty-
    10  eight hundred thirty-one of this article; provided, however, that  noth-
    11  ing  in  this section shall be deemed to preclude any such facility from
    12  implementing higher direct-care nurse-to-patient  staffing  levels,  nor
    13  shall  the  requirements  set forth in such section twenty-eight hundred
    14  thirty-one of this article be deemed to supersede or replace any  higher
    15  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-one  of  this
    18  article, no nurse shall be assigned, or included in the nurse-to-patient
    19  ratio  count  in  a  nursing  unit  or a clinical area within a hospital
    20  unless that nurse has an appropriate license  pursuant  to  article  one
    21  hundred thirty-nine of the education law, has received prior orientation
    22  in  that  clinical  area sufficient to provide competent nursing care to
    23  the patients in that unit or clinical area, and has demonstrated current
    24  competence in providing care in that unit or  clinical  area.  Hospitals
    25  that utilize temporary nursing agencies shall have and adhere to a writ-
    26  ten  procedure  to  orient  and  evaluate personnel from such sources to
    27  ensure adequate orientation and competency prior  to  inclusion  in  the
    28  nurse-to-patient ratio.  In the event of an emergency staffing situation
    29  in  which  insufficient staffing may lead to unsafe patient care, nurses
    30  may be temporarily assigned  to  a  different  unit  or  clinical  area,
    31  provided  that  such  nurses  shall  be assigned patients appropriate to
    32  their skill  and  competency  level.  The  hospital  shall  establish  a
    33  consistent plan for addressing emergency staffing situations and monitor
    34  outcomes.   Emergencies are defined as natural disasters, declared emer-
    35  gencies, mass casualty incidents or other events not  reasonably  antic-
    36  ipated and planned for and not regularly occurring within the hospital.
    37    3. Each hospital shall maintain accurate daily records showing:
    38    (a)  the  number  of  patients  admitted, released and present in each
    39  nursing department or unit within such hospital;
    40    (b) the individual acuity level of each patient present in each  nurs-
    41  ing department or unit within such hospital; and
    42    (c)  the  identity  and  duty  hours of each direct-care nurse in each
    43  nursing department or unit within such hospital.
    44    4. Each hospital shall maintain daily statistics, by  nursing  depart-
    45  ment  and unit, of mortality, morbidity, infection, accident, injury and
    46  medical errors.
    47    5. All records required to be kept pursuant to this section  shall  be
    48  maintained for a period of seven years.
    49    6.  All  records required to be kept pursuant to this section shall be
    50  made available upon  request  to  the  department  and  to  the  public;
    51  provided,  however, that information released to the public shall comply
    52  with the applicable patient privacy laws,  rules  and  regulations,  and
    53  that  in facilities operated pursuant to the correction law the identity
    54  and hours of staff shall not be released to the public.
    55    § 2833. Work assignment policy.  1.  General.    Each  hospital  shall
    56  adopt,  disseminate to direct-care nurses and comply with a written work

        A. 108--A                           7

     1  assignment policy, that meets the requirements of subdivisions  two  and
     2  three  of  this  section,  detailing  the  circumstances  under  which a
     3  direct-care nurse may refuse a work assignment.
     4    2.  Minimum conditions. At a minimum, the work assignment policy shall
     5  permit a direct-care nurse to refuse an assignment:
     6    (a) for which the nurse is not  prepared  by  education,  training  or
     7  experience  to  safely  fulfill  the  assignment without compromising or
     8  jeopardizing patient safety, the nurse's  ability  to  meet  foreseeable
     9  patient needs or the nurse's license; or
    10    (b) would otherwise violate the safe staffing requirements.
    11    3.  Minimum procedures. At a minimum, the work assignment policy shall
    12  contain procedures for the following:
    13    (a) reasonable requirements for prior notice to the nurse's supervisor
    14  regarding the nurse's request and supporting reasons for being  relieved
    15  of an assignment or continued duty;
    16    (b)  where  feasible,  an opportunity for the supervisor to review the
    17  specific conditions supporting the nurse's request, and to decide wheth-
    18  er to remedy the conditions, to relieve the nurse of the assignment,  or
    19  to  deny the nurse's request to be relieved of the assignment or contin-
    20  ued duty;
    21    (c) a process that permits the nurse to exercise the right  to  refuse
    22  the  assignment  or  continued on-duty status when the supervisor denies
    23  the request to be relieved if:
    24    (i) the supervisor rejects the request without proposing a  remedy  or
    25  the proposed remedy would be inadequate or untimely,
    26    (ii)  the complaint and investigation process with a regulatory agency
    27  would be untimely to address the concern, and
    28    (iii) the employee in good faith believes that  the  assignment  meets
    29  conditions justifying refusal; and
    30    (d)  recognition  that a nurse who refuses an assignment pursuant to a
    31  work assignment policy as set forth in this section shall not be deemed,
    32  by reason thereof, to have engaged in negligent or  incompetent  action,
    33  patient  abandonment,  or otherwise to have violated any law relating to
    34  nursing.
    35    § 2834. Public disclosure of  staffing  requirements.  Every  hospital
    36  shall:
    37    1.  post  in  a  conspicuous  place  readily accessible to the general
    38  public a notice prepared by the department setting forth  a  summary  of
    39  the safe staffing requirements applicable to that hospital together with
    40  information about where detailed information about the hospital's staff-
    41  ing plan and actual staffing may be obtained;
    42    2.  upon  request,  make  copies of the documented staffing plan filed
    43  with the department available to the public; and
    44    3. upon request make readily available to the nursing staff  within  a
    45  department or unit, during each work shift, the following information:
    46    (a) a copy of the current staffing plan for that department or unit,
    47    (b)  documentation  of the number of direct-care nurses required to be
    48  present during the shift, based on the approved adopted  acuity  system,
    49  and
    50    (c)  documentation  of the actual number of direct-care nurses present
    51  during the shift.
    52    § 2835. Enforcement responsibilities. The department shall  not  dele-
    53  gate  its  responsibilities  to  enforce  the safe staffing requirements
    54  promulgated pursuant to this article.
    55    § 2836. Private right of action for violations of section twenty-eight
    56  hundred thirty-three of this article.   Any hospital that  violates  the

        A. 108--A                           8

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

        A. 108--A                           9

     1  trators and one representative of consumers. The  nursing  home  council
     2  shall advise the commissioner in the development of regulations relating
     3  to the staffing standards under this section; and may from time to time,
     4  report to the governor, the legislature, the public and the commissioner
     5  any recommendations regarding staffing levels in nursing homes.
     6    3. Staffing standards.  (a) The commissioner, in consultation with the
     7  council,  shall, by regulation, establish staffing standards for nursing
     8  home minimum staffing levels to meet applicable standards of service and
     9  care and to provide services to attain or maintain the highest practica-
    10  ble physical, mental, and psychosocial well-being of  each  resident  of
    11  the  facility.  The  commissioner  shall also require by regulation that
    12  every nursing home maintain records on its staffing  levels,  report  on
    13  such  records  to  the  department,  and make such records available for
    14  inspection by the department.
    15    (b) Every nursing home shall:
    16    (i) comply with the staffing standards under this section; and
    17    (ii) employ sufficient staffing levels to meet applicable standards of
    18  service and care and to provide service and care and to provide services
    19  to attain or maintain the  highest  practicable  physical,  mental,  and
    20  psychosocial well-being of each resident of the facility.
    21    (c)  Subject  to  subdivision five of this section, staffing standards
    22  under this section shall, at a minimum, be the staffing standards  under
    23  subdivision four of this section.
    24    (d)  In  determining compliance with the staffing standards under this
    25  section, an individual shall not be counted  while  performing  services
    26  that  are not direct nursing care, such as administrative services, food
    27  preparation,  housekeeping,  laundry,  maintenance  services,  or  other
    28  activities that are not direct nursing care.
    29    4.    Statutory standard. Beginning two years after the effective date
    30  of this section, every nursing home  shall  maintain  a  staffing  ratio
    31  equal to at least the following:
    32    (a) 2.8 hours of care per resident per day by a certified nurse aide;
    33    (b)  1.3  hours  of  care per resident per day by a licensed practical
    34  nurse or a registered nurse;
    35    (c) 0.75 hours of care per resident per day by a registered nurse; the
    36  minimum of 0.75 hours of care per  resident  provided  by  a  registered
    37  nurse  shall  be divided among all shifts to ensure an appropriate level
    38  of registered nurse care twenty-four hours per day, seven days  a  week,
    39  to meet resident needs; and
    40    (d)  Nursing homes that care for subacute patients shall maintain at a
    41  minimum, the following direct-care nurse-to-patient ratio: one nurse  to
    42  five patients.
    43    5.   Any nursing home that violates the rights of an employee pursuant
    44  to an adopted work assignment policy under  this  section  may  be  held
    45  liable  to  such  employee  in an action brought in a court of competent
    46  jurisdiction for such legal or equitable relief as may be appropriate to
    47  effectuate the purposes of the safe staffing requirements, including but
    48  not limited to reinstatement, promotion, lost wages  and  benefits,  and
    49  compensatory  and  consequential  damages  resulting  from the violation
    50  together with an equal amount in liquidated damages. The court  in  such
    51  action shall, in addition to any judgment awarded to a prevailing plain-
    52  tiff, award reasonable attorneys' fees and costs of action to be paid by
    53  the  defendant. An employee's right to institute a private action pursu-
    54  ant to this subdivision shall not be limited by any other right  granted
    55  by the safe staffing requirements.

        A. 108--A                          10

     1    6. Public disclosure of staffing levels. (a) A nursing home shall post
     2  information  regarding  nurse  staffing that the facility is required to
     3  make available to the public under section twenty-eight  hundred  five-t
     4  of this chapter.  Information under this paragraph shall be displayed in
     5  a  form  approved  by  the department and be posted in a manner which is
     6  visible and accessible to residents, their families and  the  staff,  as
     7  required by the commissioner.
     8    (b)  A  nursing home shall post a summary of this section, provided by
     9  the department, in proximity to each posting required by  paragraph  (a)
    10  of this subdivision.
    11    § 7. If any provision of this act, or any application of any provision
    12  of  this  act,  is held to be invalid, or ruled by any federal agency to
    13  violate or be inconsistent with any  applicable  federal  law  or  regu-
    14  lation, that shall not affect the validity or effectiveness of any other
    15  provision  of  this act, or of any other application of any provision of
    16  this act.
    17    § 8. This act shall take effect on the one hundred eightieth day after
    18  it shall have become a law. Effective immediately, the addition,  amend-
    19  ment and/or repeal of any rule or regulation necessary for the implemen-
    20  tation  of  this act on its effective date are authorized to be made and
    21  completed on or before such effective date.
feedback