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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        2264--A

                              2009-2010 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 15, 2009
                                      ___________

       Introduced  by  M.  of A. GOTTFRIED, MILLMAN, JACOBS, BENEDETTO, REILLY,
         GABRYSZAK, JOHN, LANCMAN, PHEFFER, ESPAILLAT, CLARK,  MARKEY,  SCHROE-
         DER,  HOYT,  FIELDS,  GUNTHER, ROSENTHAL, DESTITO, JAFFEE, MAGNARELLI,
         PEOPLES-STOKES, PERRY, STIRPE, PAULIN,  BRODSKY,  SPANO,  ENGLEBRIGHT,
         SCHIMEL, CAMARA, DINOWITZ, ORTIZ, RAMOS, LAVINE, TITONE, BROOK-KRASNY,
         ALESSI,  BENJAMIN  --  Multi-Sponsored  by  -- M. of A. ALFANO, BARRA,
         BING, BOYLAND, CAHILL, CHRISTENSEN,  COLTON,  CRESPO,  CUSICK,  GLICK,
         HEASTIE, HOOPER, KELLNER, LATIMER, LIFTON, LUPARDO, MAISEL, MAYERSOHN,
         McDONOUGH,   McENENY,   MENG,   J. MILLER,  PRETLOW,  QUINN,  RABBITT,
         J. RIVERA, SALADINO, SWEENEY, THIELE, TOWNS, WEINSTEIN, WEISENBERG  --
         read  once  and  referred to the Committee on Health -- recommitted to
         the Committee on Health in accordance with Assembly Rule 3, sec. 2  --
         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" and to amend the state finance law,  in
         relation  to  moneys  deposited  into the improving quality of patient
         care fund

         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    S 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

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00402-03-0
       A. 2264--A                          2

    1  TWENTY-EIGHT  HUNDRED TWENTY OF THIS ARTICLE, and such other information
    2  as the department may require.
    3    (b)  An  operating  certificate  shall not be issued by the department
    4  unless it finds that  the  premises,  equipment,  personnel,  DOCUMENTED
    5  STAFFING  PLAN, rules and by-laws, standards of medical care, and hospi-
    6  tal service are fit and adequate and that the hospital will be  operated
    7  in  the manner required by this article and rules and regulations there-
    8  under.
    9    S 3. The public health law is amended  by  adding  nine  new  sections
   10  2823,  2824,  2825,  2826,  2827,  2828,  2829, 2830 and 2831 to read as
   11  follows:
   12    S 2823. POLICY AND PURPOSE. THE LEGISLATURE FINDS AND DECLARES ALL  OF
   13  THE FOLLOWING:
   14    1.  HEALTH  CARE  SERVICES ARE BECOMING COMPLEX AND IT IS INCREASINGLY
   15  DIFFICULT FOR PATIENTS TO ACCESS INTEGRATED SERVICES;
   16    2. THE QUALITY OF PATIENT CARE IS JEOPARDIZED BECAUSE OF NURSE  STAFF-
   17  ING SHORTAGES AND IMPROPER UTILIZATION OF NURSING SERVICES;
   18    3.  TO  ENSURE  THE  ADEQUATE  PROTECTION  OF  PATIENTS IN HEALTH CARE
   19  SETTINGS, IT IS ESSENTIAL THAT QUALIFIED  REGISTERED  NURSES  AND  OTHER
   20  LICENSED  NURSES  BE  ACCESSIBLE  AND  AVAILABLE  TO  MEET  THE NEEDS OF
   21  PATIENTS; AND
   22    4. THE BASIC PRINCIPLES OF STAFFING IN THE HEALTH CARE SETTING  SHOULD
   23  BE  BASED  ON  THE  PATIENT'S  CARE  NEEDS,  THE  SEVERITY OF CONDITION,
   24  SERVICES NEEDED AND THE COMPLEXITY SURROUNDING THOSE SERVICES.
   25    S 2824. SAFE STAFFING; DEFINITIONS. THE FOLLOWING WORDS  AND  PHRASES,
   26  AS  USED  IN  THIS ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS UNLESS THE
   27  CONTEXT OTHERWISE PLAINLY REQUIRES:
   28    1. "ACUTE CARE FACILITY" SHALL MEAN A GENERAL HOSPITAL, AND SHALL ALSO
   29  INCLUDE ANY CHRONIC DISEASE  HOSPITAL,  MATERNITY  HOSPITAL,  OUTPATIENT
   30  DEPARTMENT,  EMERGENCY CENTER OR SURGICAL CENTER, AND SHALL ALSO INCLUDE
   31  ANY FACILITY THAT PROVIDES HEALTH CARE SERVICES PURSUANT TO  THE  MENTAL
   32  HYGIENE  LAW  OR  THE CORRECTION LAW IF SUCH FACILITY IS OPERATED BY THE
   33  STATE OR A POLITICAL SUBDIVISION OF THE STATE OR A PUBLIC  AUTHORITY  OR
   34  PUBLIC BENEFIT CORPORATION.
   35    2.  "ACUITY  SYSTEM"  SHALL MEAN AN ESTABLISHED MEASUREMENT INSTRUMENT
   36  WHICH (A) PREDICTS NURSING CARE  REQUIREMENTS  FOR  INDIVIDUAL  PATIENTS
   37  BASED ON SEVERITY OF PATIENT ILLNESS, NEED FOR SPECIALIZED EQUIPMENT AND
   38  TECHNOLOGY,   INTENSITY  OF  NURSING  INTERVENTIONS  REQUIRED,  AND  THE
   39  COMPLEXITY OF CLINICAL NURSING JUDGMENT NEEDED TO DESIGN, IMPLEMENT  AND
   40  EVALUATE  THE  PATIENT'S  NURSING  CARE  PLAN; (B) DETAILS THE AMOUNT OF
   41  NURSING CARE NEEDED, BOTH IN NUMBER OF DIRECT-CARE NURSES AND  IN  SKILL
   42  MIX OF NURSING PERSONNEL REQUIRED, ON A DAILY BASIS, FOR EACH PATIENT IN
   43  A  NURSING  DEPARTMENT  OR UNIT; AND (C) IS STATED IN TERMS THAT READILY
   44  CAN BE USED AND UNDERSTOOD BY  DIRECT-CARE  NURSES.  THE  ACUITY  SYSTEM
   45  SHALL  TAKE  INTO  CONSIDERATION  THE PATIENT CARE SERVICES PROVIDED NOT
   46  ONLY BY REGISTERED PROFESSIONAL NURSES BUT ALSO  BY  LICENSED  PRACTICAL
   47  NURSES, SOCIAL WORKERS AND OTHER HEALTH CARE PERSONNEL.
   48    3. "ASSESSMENT TOOL" SHALL MEAN A MEASUREMENT SYSTEM THAT COMPARES THE
   49  STAFFING LEVEL IN EACH NURSING DEPARTMENT OR UNIT AGAINST ACTUAL PATIENT
   50  NURSING  CARE  REQUIREMENTS IN ORDER TO REVIEW THE ACCURACY OF AN ACUITY
   51  SYSTEM.
   52    4. "DIRECT-CARE NURSE" AND "DIRECT-CARE NURSING STAFF" SHALL MEAN  ANY
   53  NURSE  WHO  HAS PRINCIPAL RESPONSIBILITY TO OVERSEE OR CARRY OUT MEDICAL
   54  REGIMENS, NURSING OR OTHER BEDSIDE CARE FOR ONE OR MORE PATIENTS.
   55    5. "DOCUMENTED STAFFING PLAN"  SHALL  MEAN  A  DETAILED  WRITTEN  PLAN
   56  SETTING FORTH THE MINIMUM NUMBER AND CLASSIFICATION OF DIRECT-CARE NURS-
       A. 2264--A                          3

    1  ES REQUIRED IN EACH NURSING DEPARTMENT OR UNIT IN AN ACUTE CARE FACILITY
    2  FOR  A  GIVEN  YEAR,  BASED  ON  REASONABLE PROJECTIONS DERIVED FROM THE
    3  PATIENT CENSUS AND AVERAGE ACUITY LEVEL WITHIN EACH DEPARTMENT  OR  UNIT
    4  DURING  THE  PRIOR  YEAR, THE DEPARTMENT OR UNIT SIZE AND GEOGRAPHY, THE
    5  NATURE OF SERVICES PROVIDED AND ANY FORESEEABLE CHANGES IN DEPARTMENT OR
    6  UNIT SIZE OR FUNCTION DURING THE CURRENT YEAR.
    7    6. "NURSE" SHALL MEAN A  REGISTERED  PROFESSIONAL  NURSE  OR  LICENSED
    8  PRACTICAL  NURSE LICENSED PURSUANT TO ARTICLE ONE HUNDRED THIRTY-NINE OF
    9  THE EDUCATION LAW.
   10    7. "NURSING CARE" SHALL MEAN THAT CARE WHICH IS WITHIN THE  DEFINITION
   11  OF THE PRACTICE OF NURSING PURSUANT TO SECTION SIXTY-NINE HUNDRED TWO OF
   12  THE  EDUCATION  LAW, OR OTHERWISE ENCOMPASSED WITH THE RECOGNIZED STAND-
   13  ARDS OF NURSING PRACTICE, INCLUDING ASSESSMENT, NURSING DIAGNOSIS, PLAN-
   14  NING, INTERVENTION, EVALUATION AND PATIENT ADVOCACY.
   15    8. "SAFE STAFFING REQUIREMENTS" SHALL MEAN THE PROVISIONS OF  SECTIONS
   16  TWENTY-EIGHT   HUNDRED   TWENTY-THREE   THROUGH   TWENTY-EIGHT   HUNDRED
   17  THIRTY-ONE 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    S 2825. COMMISSIONER AND COUNCIL; POWERS AND DUTIES. THE  COMMISSIONER
   26  SHALL:
   27    1.  PROMULGATE,  AFTER  CONSULTATION  WITH  THE COUNCIL, THE RULES AND
   28  REGULATIONS NECESSARY TO CARRY OUT THE PURPOSES AND  PROVISIONS  OF  THE
   29  SAFE   STAFFING  REQUIREMENTS,  INCLUDING  REGULATIONS  DEFINING  TERMS,
   30  SETTING FORTH DIRECT-CARE NURSE TO PATIENT RATIOS  AND  PRESCRIBING  THE
   31  PROCESS  FOR  APPROVING  ACUITY  SYSTEMS, WHICH MAY INCLUDE A SYSTEM FOR
   32  CLASS APPROVAL OF ACUITY SYSTEMS; AND
   33    2. ASSURE THAT  THE  PROVISIONS  OF  SAFE  STAFFING  REQUIREMENTS  ARE
   34  ENFORCED,  INCLUDING  THE  ISSUANCE  OF  REGULATIONS  WHICH AT A MINIMUM
   35  PROVIDE FOR AN ACCESSIBLE AND CONFIDENTIAL SYSTEM TO REPORT THE  FAILURE
   36  TO  COMPLY  WITH  SUCH  REQUIREMENTS  AND  PUBLIC  ACCESS TO INFORMATION
   37  REGARDING REPORTS OF INSPECTIONS, RESULTS, DEFICIENCIES AND  CORRECTIONS
   38  PURSUANT TO SUCH REQUIREMENTS.
   39    3.  ESTABLISH A COMMITTEE TO ADVISE IN THE DEVELOPMENT OF REGULATIONS,
   40  INCLUDING REGISTERED PROFESSIONAL NURSE TO PATIENT STAFFING REQUIREMENTS
   41  THAT ARE NOT SPECIFIED IN THIS ARTICLE.  THE COMMITTEE SHALL ADVISE  THE
   42  COMMISSIONER  ON  THE EFFICACY OF ACUITY SYSTEMS SUBMITTED FOR APPROVAL,
   43  AND REVIEW AND MAKE RECOMMENDATIONS ON APPROVAL OF STAFFING PLANS  PRIOR
   44  TO  THE  GRANTING  OF  AN  OPERATING  CERTIFICATE BY THE DEPARTMENT. THE
   45  COMMITTEE SHALL HAVE THIRTEEN MEMBERS. NO LESS THAN SIXTY PERCENT OF THE
   46  MEMBERS OF THE COMMITTEE SHALL BE REGISTERED  PROFESSIONAL  NURSES.  THE
   47  COMMITTEE  SHALL  INCLUDE  REGISTERED  PROFESSIONAL  NURSE  DIRECT  CARE
   48  PROVIDERS, REPRESENTATIVES OF ACUTE CARE FACILITIES, AND REPRESENTATIVES
   49  OF NURSING PROFESSIONAL ASSOCIATIONS AND RECOGNIZED OR CERTIFIED COLLEC-
   50  TIVE BARGAINING REPRESENTATIVE OF NURSES AND  OF  OTHER  SUPPORTIVE  AND
   51  ASSISTIVE  STAFF.  THE  GOVERNOR  SHALL  APPOINT THE CHAIR AND SIX OTHER
   52  MEMBERS, TWO MEMBERS SHALL BE APPOINTED BY THE SPEAKER OF THE  ASSEMBLY,
   53  ONE  MEMBER  SHALL  BE APPOINTED BY THE MINORITY LEADER OF THE ASSEMBLY,
   54  TWO MEMBERS SHALL BE APPOINTED BY THE TEMPORARY PRESIDENT OF THE  SENATE
   55  AND ONE MEMBER SHALL BE APPOINTED BY THE MINORITY LEADER OF THE SENATE.
       A. 2264--A                          4

    1    S  2826.  STAFFING  REQUIREMENTS. 1. STAFFING REQUIREMENTS. EACH ACUTE
    2  CARE FACILITY SHALL ENSURE THAT IT IS STAFFED IN A MANNER THAT  PROVIDES
    3  SUFFICIENT,  APPROPRIATELY  QUALIFIED DIRECT-CARE NURSES IN EACH DEPART-
    4  MENT OR UNIT WITHIN SUCH FACILITY IN ORDER TO  MEET  THE  INDIVIDUALIZED
    5  CARE  NEEDS  OF  THE  PATIENTS THEREIN. AT A MINIMUM, EACH SUCH FACILITY
    6  SHALL MEET THE REQUIREMENTS  OF  SUBDIVISIONS  TWO  AND  THREE  OF  THIS
    7  SECTION.
    8    2.  STAFFING PLAN. THE DEPARTMENT SHALL NOT ISSUE AN OPERATING CERTIF-
    9  ICATE TO ANY ACUTE CARE FACILITY UNLESS SUCH FACILITY  ANNUALLY  SUBMITS
   10  TO THE DEPARTMENT A DOCUMENTED STAFFING PLAN AND A WRITTEN CERTIFICATION
   11  THAT  THE  SUBMITTED STAFFING PLAN IS SUFFICIENT TO PROVIDE ADEQUATE AND
   12  APPROPRIATE DELIVERY OF HEALTH CARE SERVICES TO PATIENTS FOR THE ENSUING
   13  YEAR. THE DOCUMENTED STAFFING PLAN SHALL:
   14    (A) MEET THE MINIMUM REQUIREMENTS SET FORTH IN  SUBDIVISION  THREE  OF
   15  THIS SECTION;
   16    (B)  BE ADEQUATE TO MEET ANY ADDITIONAL REQUIREMENTS PROVIDED BY OTHER
   17  LAWS, RULES OR REGULATIONS;
   18    (C) EMPLOY AND IDENTIFY AN APPROVED ACUITY SYSTEM FOR ADDRESSING FLUC-
   19  TUATIONS IN ACTUAL PATIENT ACUITY LEVELS AND NURSING  CARE  REQUIREMENTS
   20  REQUIRING  INCREASED STAFFING LEVELS ABOVE THE MINIMUMS SET FORTH IN THE
   21  PLAN;
   22    (D) FACTOR IN OTHER UNIT OR DEPARTMENT ACTIVITY  SUCH  AS  DISCHARGES,
   23  TRANSFERS  AND  ADMISSIONS, AND ADMINISTRATIVE AND SUPPORT TASKS THAT IS
   24  EXPECTED TO BE DONE BY DIRECT-CARE NURSES IN ADDITION TO DIRECT  NURSING
   25  CARE;
   26    (E)  FACTOR  IN  THE  STAFFING LEVEL OF AND SERVICES PROVIDED BY OTHER
   27  HEALTHCARE PERSONNEL AND SUPPORTIVE PERSONNEL IN  MEETING  PATIENT  CARE
   28  NEEDS;  PROVIDED,  HOWEVER, THAT THE STAFFING PLAN SHALL NOT INCORPORATE
   29  OR ASSUME THAT NURSING CARE FUNCTIONS REQUIRED BY LAWS, RULES  OR  REGU-
   30  LATIONS,  OR  ACCEPTED STANDARDS OF PRACTICE TO BE PERFORMED BY A REGIS-
   31  TERED PROFESSIONAL NURSE ARE TO BE PERFORMED BY OTHER PERSONNEL;
   32    (F) IDENTIFY THE ASSESSMENT TOOL USED TO VALIDATE  THE  ACUITY  SYSTEM
   33  RELIED ON IN THE PLAN;
   34    (G)  IDENTIFY THE SYSTEM THAT WILL BE USED TO DOCUMENT ACTUAL STAFFING
   35  ON A DAILY BASIS WITHIN EACH DEPARTMENT OR UNIT;
   36    (H) INCLUDE A WRITTEN ASSESSMENT OF THE ACCURACY OF THE  PRIOR  YEAR'S
   37  STAFFING PLAN IN LIGHT OF ACTUAL STAFFING NEEDS;
   38    (I)  IDENTIFY  EACH NURSE STAFF CLASSIFICATION REFERENCED IN SUCH PLAN
   39  TOGETHER WITH A STATEMENT SETTING FORTH MINIMUM QUALIFICATIONS FOR  EACH
   40  SUCH CLASSIFICATION; AND
   41    (J)  BE  DEVELOPED  IN CONSULTATION WITH A MAJORITY OF THE DIRECT-CARE
   42  NURSES WITHIN EACH DEPARTMENT OR UNIT OR, WHERE SUCH NURSES ARE  REPRES-
   43  ENTED, WITH THE APPLICABLE RECOGNIZED OR CERTIFIED COLLECTIVE BARGAINING
   44  REPRESENTATIVE OR REPRESENTATIVES OF THE DIRECT-CARE NURSES AND OF OTHER
   45  SUPPORTIVE AND ASSISTIVE STAFF.
   46    3.  MINIMUM  STAFFING  REQUIREMENTS.  (A) THE DOCUMENTED STAFFING PLAN
   47  SHALL INCORPORATE, AT A MINIMUM, THE FOLLOWING DIRECT-CARE  NURSE-TO-PA-
   48  TIENT RATIOS:
   49    (I)  ONE  NURSE  TO  ONE  PATIENT: OPERATING ROOM AND TRAUMA EMERGENCY
   50  UNITS AND ALL CRITICAL CARE AREAS INCLUDING EMERGENCY CRITICAL CARE  AND
   51  ALL INTENSIVE CARE UNITS AND MATERNAL/CHILD CARE UNITS FOR THE SECOND OR
   52  THIRD STAGE OF LABOR;
   53    (II)  ONE  NURSE  TO TWO PATIENTS:   MATERNAL/CHILD CARE UNITS FOR THE
   54  FIRST STAGE OF LABOR, AND POSTANESTHESIA UNITS;
       A. 2264--A                          5

    1    (III) ONE NURSE TO THREE PATIENTS: ANTEPARTUM, EMERGENCY ROOM,  PEDIA-
    2  TRICS, STEP-DOWN AND TELEMETRY UNITS AND UNITS FOR NEWBORNS AND INTERME-
    3  DIATE CARE NURSERY UNITS;
    4    (IV)  ONE  NURSE  TO THREE PATIENTS:   POSTPARTUM MOTHER/BABY COUPLETS
    5  (MAXIMUM SIX PATIENTS PER NURSE);
    6    (V) ONE NURSE TO FOUR PATIENTS: NON-CRITICAL ANTEPARTUM PATIENTS,  AND
    7  MEDICAL/SURGICAL AND ACUTE CARE PSYCHIATRIC UNITS;
    8    (VI) ONE NURSE TO FIVE PATIENTS: REHABILITATION UNITS; AND
    9    (VII) ONE NURSE TO SIX PATIENTS: WELL-BABY NURSERY UNITS.
   10    FOR  ANY  UNITS  NOT  LISTED  IN THIS PARAGRAPH, INCLUDING PSYCHIATRIC
   11  UNITS, AND ACUTE CARE FACILITIES OPERATED PURSUANT TO THE MENTAL HYGIENE
   12  LAW OR THE CORRECTION LAW, THE DEPARTMENT SHALL ESTABLISH BY  REGULATION
   13  THE APPROPRIATE DIRECT-CARE NURSE-TO-PATIENT RATIO.
   14    (B)  THE  NURSE-TO-PATIENT  RATIOS  SET FORTH IN PARAGRAPH (A) OF THIS
   15  SUBDIVISION SHALL REFLECT THE MAXIMUM NUMBER OF  PATIENTS  THAT  MAY  BE
   16  ASSIGNED  TO EACH DIRECT-CARE NURSE IN A UNIT DURING ONE SHIFT. A NURSE,
   17  INCLUDING A NURSE ADMINISTRATOR OR SUPERVISOR, WHO DOES NOT HAVE PRINCI-
   18  PAL RESPONSIBILITY AS A DIRECT-CARE NURSE FOR A SPECIFIC  PATIENT  SHALL
   19  NOT BE INCLUDED IN THE CALCULATION OF THE NURSE-TO-PATIENT RATIO.
   20    4. LICENSED PRACTICAL NURSES. IN ANY SITUATION IN WHICH LICENSED PRAC-
   21  TICAL  NURSES ARE INCLUDED IN THE DOCUMENTED STAFFING PLAN, ANY PATIENTS
   22  ASSIGNED TO THE LICENSED PRACTICAL  NURSE  SHALL  ALSO  BE  INCLUDED  IN
   23  CALCULATING  THE  NUMBER  OF PATIENTS ASSIGNED TO ANY REGISTERED PROFES-
   24  SIONAL NURSE WHO IS REQUIRED BY LAW, RULE, REGULATION, CONTRACT OR PRAC-
   25  TICE TO SUPERVISE OR OVERSEE THE DIRECT-NURSING  CARE  PROVIDED  BY  THE
   26  LICENSED PRACTICAL NURSE.
   27    5. SKILL MIX. THE SKILL MIX SHALL NOT INCORPORATE OR ASSUME THAT NURS-
   28  ING  CARE  FUNCTIONS  REQUIRED  BY SECTION SIXTY-NINE HUNDRED TWO OF THE
   29  EDUCATION LAW OR ACCEPTED STANDARDS OF PRACTICE TO  BE  PERFORMED  BY  A
   30  REGISTERED  PROFESSIONAL NURSE ARE TO BE PERFORMED BY A LICENSED PRACTI-
   31  CAL NURSE OR UNLICENSED ASSISTIVE PERSONNEL, OR THAT NURSING CARE  FUNC-
   32  TIONS REQUIRED BY SECTION SIXTY-NINE HUNDRED TWO OF THE EDUCATION LAW OR
   33  ACCEPTED  STANDARDS  OF PRACTICE TO BE PERFORMED BY A LICENSED PRACTICAL
   34  NURSE ARE TO BE PERFORMED BY UNLICENSED ASSISTIVE PERSONNEL.
   35    6. ADJUSTMENTS. THE MINIMUM STAFFING REQUIREMENT AND  NURSE-TO-PATIENT
   36  RATIO  SET  FORTH  IN  THIS  SECTION  SHALL  BE ADJUSTED AS NECESSARY TO
   37  REFLECT THE NEED FOR ADDITIONAL DIRECT-CARE NURSES NECESSARY  TO  ENSURE
   38  ADEQUATE STAFFING OF EACH NURSING DEPARTMENT OR UNIT, IN ACCORDANCE WITH
   39  AN APPROVED ACUITY SYSTEM.
   40    7.  DEPARTMENT REGULATIONS. NOTHING IN THIS SECTION SHALL BE DEEMED TO
   41  PRECLUDE THE DEPARTMENT BY RULE  OR  REGULATION  FROM  ESTABLISHING  AND
   42  REQUIRING  A  DOCUMENTED  STAFFING  PLAN TO HAVE HIGHER NURSE-TO-PATIENT
   43  RATIOS THAN THOSE SET FORTH IN THIS SECTION.
   44    8. NOTHING CONTAINED IN THIS SECTION SHALL BE DEEMED TO ALTER,  AFFECT
   45  THE  VALIDITY OF, MODIFY THE TERMS OF, OR IMPAIR ANY COLLECTIVE BARGAIN-
   46  ING AGREEMENT.
   47    S 2827. COMPLIANCE WITH STAFFING  PLAN  AND  RECORDKEEPING.  1.  AS  A
   48  CONDITION  FOR  THE  MAINTENANCE OF AN OPERATING CERTIFICATE, EACH ACUTE
   49  CARE FACILITY SHALL AT ALL TIMES STAFF IN ACCORDANCE WITH ITS DOCUMENTED
   50  STAFFING  PLAN  AND  THE  STAFFING  STANDARDS  SET  FORTH   IN   SECTION
   51  TWENTY-EIGHT HUNDRED TWENTY-SIX OF THIS ARTICLE; PROVIDED, HOWEVER, THAT
   52  NOTHING  IN  THIS  SECTION SHALL BE DEEMED TO PRECLUDE ANY SUCH FACILITY
   53  FROM IMPLEMENTING HIGHER DIRECT-CARE NURSE-TO-PATIENT  STAFFING  LEVELS,
   54  NOR  SHALL  THE  REQUIREMENTS  SET  FORTH  IN  SUCH SECTION TWENTY-EIGHT
   55  HUNDRED TWENTY-SIX OF THIS ARTICLE BE DEEMED TO SUPERSEDE OR REPLACE ANY
       A. 2264--A                          6

    1  HIGHER REQUIREMENTS OTHERWISE  MANDATED  BY  LAW,  RULE,  REGULATION  OR
    2  CONTRACT.
    3    2.  FOR  PURPOSES OF COMPLIANCE WITH THE MINIMUM STAFFING REQUIREMENTS
    4  STANDARDS SET FORTH IN SECTION TWENTY-EIGHT HUNDRED TWENTY-SIX  OF  THIS
    5  ARTICLE, NO NURSE SHALL BE ASSIGNED, OR INCLUDED IN THE NURSE-TO-PATIENT
    6  RATIO  COUNT  IN  A NURSING UNIT OR A CLINICAL AREA WITHIN AN ACUTE CARE
    7  FACILITY UNLESS THAT NURSE HAS AN APPROPRIATE LICENSE PURSUANT TO  ARTI-
    8  CLE  ONE  HUNDRED  THIRTY-NINE  OF THE EDUCATION LAW, HAS RECEIVED PRIOR
    9  ORIENTATION IN THAT CLINICAL AREA SUFFICIENT TO PROVIDE COMPETENT  NURS-
   10  ING  CARE  TO THE PATIENTS IN THAT UNIT OR CLINICAL AREA, AND HAS DEMON-
   11  STRATED CURRENT COMPETENCE IN PROVIDING CARE IN THAT  UNIT  OR  CLINICAL
   12  AREA.  ACUTE  CARE  FACILITIES  THAT  UTILIZE TEMPORARY NURSING AGENCIES
   13  SHALL HAVE AND ADHERE TO A WRITTEN  PROCEDURE  TO  ORIENT  AND  EVALUATE
   14  PERSONNEL FROM SUCH SOURCES TO ENSURE ADEQUATE ORIENTATION AND COMPETEN-
   15  CY PRIOR TO INCLUSION IN THE NURSE-TO-PATIENT RATIO.  IN THE EVENT OF AN
   16  EMERGENCY  STAFFING SITUATION IN WHICH INSUFFICIENT STAFFING MAY LEAD TO
   17  UNSAFE PATIENT CARE, NURSES MAY BE TEMPORARILY ASSIGNED TO  A  DIFFERENT
   18  UNIT  OR  CLINICAL  AREA,  PROVIDED  THAT  SUCH NURSES SHALL BE ASSIGNED
   19  PATIENTS APPROPRIATE TO THEIR SKILL AND COMPETENCY LEVEL.  THE  FACILITY
   20  SHALL  ESTABLISH  A  CONSISTENT  PLAN  FOR ADDRESSING EMERGENCY STAFFING
   21  SITUATIONS AND MONITOR OUTCOMES.   EMERGENCIES ARE  DEFINED  AS  NATURAL
   22  DISASTERS, DECLARED EMERGENCIES, MASS CASUALTY INCIDENTS OR OTHER EVENTS
   23  NOT  REASONABLY  ANTICIPATED AND PLANNED FOR AND NOT REGULARLY OCCURRING
   24  WITHIN THE FACILITY.
   25    3. AS A CONDITION FOR THE MAINTENANCE  OF  AN  OPERATING  CERTIFICATE,
   26  EACH ACUTE CARE FACILITY SHALL MAINTAIN ACCURATE DAILY RECORDS SHOWING:
   27    (A)  THE  NUMBER  OF  PATIENTS  ADMITTED, RELEASED AND PRESENT IN EACH
   28  NURSING DEPARTMENT OR UNIT WITHIN SUCH FACILITY;
   29    (B) THE INDIVIDUAL ACUITY LEVEL OF EACH PATIENT PRESENT IN EACH  NURS-
   30  ING DEPARTMENT OR UNIT WITHIN SUCH FACILITY; AND
   31    (C)  THE  IDENTITY  AND  DUTY  HOURS OF EACH DIRECT-CARE NURSE IN EACH
   32  NURSING DEPARTMENT OR UNIT WITHIN SUCH FACILITY.
   33    4. AS A CONDITION FOR THE MAINTENANCE  OF  AN  OPERATING  CERTIFICATE,
   34  EACH  ACUTE  CARE  FACILITY  SHALL MAINTAIN DAILY STATISTICS, BY NURSING
   35  DEPARTMENT AND UNIT, OF MORTALITY, MORBIDITY, INFECTION, ACCIDENT, INJU-
   36  RY AND MEDICAL ERRORS.
   37    5. ALL RECORDS REQUIRED TO BE KEPT PURSUANT TO THIS SECTION  SHALL  BE
   38  MAINTAINED FOR A PERIOD OF SEVEN YEARS.
   39    6.  ALL  RECORDS REQUIRED TO BE KEPT PURSUANT TO THIS SECTION SHALL BE
   40  MADE AVAILABLE UPON  REQUEST  TO  THE  DEPARTMENT  AND  TO  THE  PUBLIC;
   41  PROVIDED,  HOWEVER, THAT INFORMATION RELEASED TO THE PUBLIC SHALL COMPLY
   42  WITH THE APPLICABLE PATIENT PRIVACY LAWS,  RULES  AND  REGULATIONS,  AND
   43  THAT  IN FACILITIES OPERATED PURSUANT TO THE CORRECTION LAW THE IDENTITY
   44  AND HOURS OF STAFF SHALL NOT BE RELEASED TO THE PUBLIC.
   45    S 2828. WORK ASSIGNMENT POLICY. 1. GENERAL. AS  A  CONDITION  FOR  THE
   46  MAINTENANCE  OF AN OPERATING CERTIFICATE, EACH ACUTE CARE FACILITY SHALL
   47  ADOPT, DISSEMINATE TO DIRECT-CARE NURSES AND COMPLY WITH A WRITTEN  WORK
   48  ASSIGNMENT  POLICY,  THAT MEETS THE REQUIREMENTS OF SUBDIVISIONS TWO AND
   49  THREE OF  THIS  SECTION,  DETAILING  THE  CIRCUMSTANCES  UNDER  WHICH  A
   50  DIRECT-CARE NURSE MAY REFUSE A WORK ASSIGNMENT.
   51    2.  MINIMUM CONDITIONS. AT A MINIMUM, THE WORK ASSIGNMENT POLICY SHALL
   52  PERMIT A DIRECT-CARE NURSE TO REFUSE AN ASSIGNMENT:
   53    (A) FOR WHICH THE NURSE IS NOT  PREPARED  BY  EDUCATION,  TRAINING  OR
   54  EXPERIENCE  TO  SAFELY  FULFILL  THE  ASSIGNMENT WITHOUT COMPROMISING OR
   55  JEOPARDIZING PATIENT SAFETY, THE NURSE'S  ABILITY  TO  MEET  FORESEEABLE
   56  PATIENT NEEDS OR THE NURSE'S LICENSE; OR
       A. 2264--A                          7

    1    (B) WOULD OTHERWISE VIOLATE THE SAFE STAFFING REQUIREMENTS.
    2    3.  MINIMUM PROCEDURES. AT A MINIMUM, THE WORK ASSIGNMENT POLICY SHALL
    3  CONTAIN PROCEDURES FOR THE FOLLOWING:
    4    (A) REASONABLE REQUIREMENTS FOR PRIOR NOTICE TO THE NURSE'S SUPERVISOR
    5  REGARDING THE NURSE'S REQUEST AND SUPPORTING REASONS FOR BEING  RELIEVED
    6  OF AN ASSIGNMENT OR CONTINUED DUTY;
    7    (B)  WHERE  FEASIBLE,  AN OPPORTUNITY FOR THE SUPERVISOR TO REVIEW THE
    8  SPECIFIC CONDITIONS SUPPORTING THE NURSE'S REQUEST, AND TO DECIDE WHETH-
    9  ER TO REMEDY THE CONDITIONS, TO RELIEVE THE NURSE OF THE ASSIGNMENT,  OR
   10  TO  DENY THE NURSE'S REQUEST TO BE RELIEVED OF THE ASSIGNMENT OR CONTIN-
   11  UED DUTY;
   12    (C) A PROCESS THAT PERMITS THE NURSE TO EXERCISE THE RIGHT  TO  REFUSE
   13  THE  ASSIGNMENT  OR  CONTINUED ON-DUTY STATUS WHEN THE SUPERVISOR DENIES
   14  THE REQUEST TO BE RELIEVED IF:
   15    (I) THE SUPERVISOR REJECTS THE REQUEST WITHOUT PROPOSING A  REMEDY  OR
   16  THE PROPOSED REMEDY WOULD BE INADEQUATE OR UNTIMELY,
   17    (II)  THE COMPLAINT AND INVESTIGATION PROCESS WITH A REGULATORY AGENCY
   18  WOULD BE UNTIMELY TO ADDRESS THE CONCERN, AND
   19    (III) THE EMPLOYEE IN GOOD FAITH BELIEVES THAT  THE  ASSIGNMENT  MEETS
   20  CONDITIONS JUSTIFYING REFUSAL; AND
   21    (D)  RECOGNITION  THAT A NURSE WHO REFUSES AN ASSIGNMENT PURSUANT TO A
   22  WORK ASSIGNMENT POLICY AS SET FORTH IN THIS SECTION SHALL NOT BE DEEMED,
   23  BY REASON THEREOF, TO HAVE ENGAGED IN NEGLIGENT OR  INCOMPETENT  ACTION,
   24  PATIENT  ABANDONMENT,  OR OTHERWISE TO HAVE VIOLATED ANY LAW RELATING TO
   25  NURSING.
   26    S 2829. PUBLIC DISCLOSURE OF STAFFING REQUIREMENTS. EVERY  ACUTE  CARE
   27  FACILITY SHALL:
   28    1.  POST  IN  A  CONSPICUOUS  PLACE  READILY ACCESSIBLE TO THE GENERAL
   29  PUBLIC A NOTICE PREPARED BY THE DEPARTMENT SETTING FORTH  A  SUMMARY  OF
   30  THE SAFE STAFFING REQUIREMENTS APPLICABLE TO THAT FACILITY TOGETHER WITH
   31  INFORMATION ABOUT WHERE DETAILED INFORMATION ABOUT THE FACILITY'S STAFF-
   32  ING PLAN AND ACTUAL STAFFING MAY BE OBTAINED;
   33    2.  UPON  REQUEST,  MAKE  COPIES OF THE DOCUMENTED STAFFING PLAN FILED
   34  WITH THE DEPARTMENT AVAILABLE TO THE PUBLIC; AND
   35    3. UPON REQUEST MAKE READILY AVAILABLE TO THE NURSING STAFF  WITHIN  A
   36  DEPARTMENT OR UNIT, DURING EACH WORK SHIFT, THE FOLLOWING INFORMATION:
   37    (A) A COPY OF THE CURRENT STAFFING PLAN FOR THAT DEPARTMENT OR UNIT,
   38    (B)  DOCUMENTATION  OF THE NUMBER OF DIRECT-CARE NURSES REQUIRED TO BE
   39  PRESENT DURING THE SHIFT, BASED ON THE APPROVED ADOPTED  ACUITY  SYSTEM,
   40  AND
   41    (C)  DOCUMENTATION  OF THE ACTUAL NUMBER OF DIRECT-CARE NURSES PRESENT
   42  DURING THE SHIFT.
   43    S 2830. ENFORCEMENT RESPONSIBILITIES. THE DEPARTMENT SHALL  NOT  DELE-
   44  GATE  ITS  RESPONSIBILITIES  TO  ENFORCE  THE SAFE STAFFING REQUIREMENTS
   45  PROMULGATED PURSUANT TO THIS ARTICLE.
   46    S 2831. ENFORCEMENT AND  PENALTIES.  1.  CIVIL  PENALTY.  ANY  PERSON,
   47  REGARDLESS  OF  WHETHER  THAT PERSON POSSESSES AN OPERATING CERTIFICATE,
   48  WHO HAS COMMITTED A VIOLATION OF ANY  OF  THE  PROVISIONS  OF  THE  SAFE
   49  STAFFING  REQUIREMENTS, INCLUDING FAILURE TO CORRECT A SERIOUS VIOLATION
   50  (AS DEFINED BY REGULATION) WITHIN THE TIME  SPECIFIED  IN  A  DEFICIENCY
   51  CITATION,  MAY BE ASSESSED A CIVIL PENALTY BY ORDER OF THE DEPARTMENT OF
   52  UP TO FIVE HUNDRED DOLLARS FOR EACH DEFICIENCY FOR EACH  DAY  THAT  EACH
   53  DEFICIENCY  CONTINUES;  PROVIDED,  HOWEVER,  THAT  AN  ACUTE HEALTH CARE
   54  FACILITY  THAT  FAILS  TO  COMPLY  WITH  THE  REQUIREMENTS  OF   SECTION
   55  TWENTY-EIGHT  HUNDRED TWENTY-SIX OF THIS ARTICLE MAY BE ASSESSED A CIVIL
   56  PENALTY BY ORDER OF THE DEPARTMENT OF UP TO  TEN  THOUSAND  DOLLARS  FOR
       A. 2264--A                          8

    1  EACH  DAY OF NON-COMPLIANCE. CIVIL PENALTIES SHALL BE COLLECTED FROM THE
    2  DATE SUCH FACILITY RECEIVES NOTICE OF  VIOLATION  UNTIL  THE  DATE  SUCH
    3  VIOLATION IS CORRECTED.
    4    2.  CIVIL  PENALTY  FOR  INTERFERENCE  WITH REPORTING OBLIGATIONS. ANY
    5  PERSON OR ACUTE CARE FACILITY THAT FAILS TO REPORT OR FALSIFIES INFORMA-
    6  TION, OR COERCES, THREATENS, INTIMIDATES OR OTHERWISE INFLUENCES  ANOTH-
    7  ER PERSON TO FAIL TO REPORT OR TO FALSIFY  INFORMATION  REQUIRED  TO  BE
    8  REPORTED  UNDER  THE SAFE STAFFING REQUIREMENTS, MAY BE ASSESSED A CIVIL
    9  PENALTY OF UP TO TEN THOUSAND DOLLARS FOR EACH SUCH INCIDENT.
   10    3. PRIVATE RIGHT OF ACTION  FOR  VIOLATIONS  OF  SECTION  TWENTY-EIGHT
   11  HUNDRED  TWENTY-EIGHT  OF  THIS  ARTICLE.   ANY ACUTE CARE FACILITY THAT
   12  VIOLATES THE RIGHTS OF AN EMPLOYEE PURSUANT TO AN ADOPTED  WORK  ASSIGN-
   13  MENT  POLICY  UNDER  SECTION  TWENTY-EIGHT  HUNDRED TWENTY-EIGHT OF THIS
   14  ARTICLE MAY BE HELD LIABLE TO SUCH EMPLOYEE IN AN ACTION  BROUGHT  IN  A
   15  COURT  OF  COMPETENT  JURISDICTION FOR SUCH LEGAL OR EQUITABLE RELIEF AS
   16  MAY BE APPROPRIATE TO EFFECTUATE  THE  PURPOSES  OF  THE  SAFE  STAFFING
   17  REQUIREMENTS,  INCLUDING  BUT  NOT  LIMITED TO REINSTATEMENT, PROMOTION,
   18  LOST WAGES AND BENEFITS,  AND  COMPENSATORY  AND  CONSEQUENTIAL  DAMAGES
   19  RESULTING FROM THE VIOLATION TOGETHER WITH AN EQUAL AMOUNT IN LIQUIDATED
   20  DAMAGES.  THE  COURT  IN  SUCH ACTION SHALL, IN ADDITION TO ANY JUDGMENT
   21  AWARDED TO A PREVAILING PLAINTIFF, AWARD REASONABLE ATTORNEYS' FEES  AND
   22  COSTS  OF  ACTION  TO  BE  PAID BY THE DEFENDANT. AN EMPLOYEE'S RIGHT TO
   23  INSTITUTE A PRIVATE ACTION PURSUANT TO THIS  SUBDIVISION  SHALL  NOT  BE
   24  LIMITED BY ANY OTHER RIGHT GRANTED BY THE SAFE STAFFING REQUIREMENTS.
   25    S  4.  Section  2801-a of the public health law is amended by adding a
   26  new subdivision 3-b to read as follows:
   27    3-B. IN CONSIDERING CHARACTER, COMPETENCE AND STANDING IN THE COMMUNI-
   28  TY UNDER SUBDIVISION THREE OF THIS SECTION, THE  PUBLIC  HEALTH  COUNCIL
   29  SHALL  CONSIDER  ANY  PAST  VIOLATIONS  OF STATE OR FEDERAL RULES, REGU-
   30  LATIONS OR STATUTES RELATING TO EMPLOYER-EMPLOYEE  RELATIONS,  WORKPLACE
   31  SAFETY,  COLLECTIVE  BARGAINING  OR  ANY  OTHER LABOR RELATED PRACTICES,
   32  OBLIGATIONS  OR  IMPERATIVES.  THE  PUBLIC  HEALTH  COUNCIL  SHALL  GIVE
   33  SUBSTANTIAL  WEIGHT  TO  VIOLATIONS  OF THE PUBLIC HEALTH LAW PROVISIONS
   34  CONCERNING NURSE STAFF AND SUPPORTIVE STAFF RATIOS.
   35    S 5. Section 2805 of the public health law is amended by adding a  new
   36  subdivision 3 to read as follows:
   37    3.  IN  DETERMINING WHETHER TO ISSUE OR RENEW AN OPERATING CERTIFICATE
   38  TO AN APPLICANT SEEKING TO OPERATE, OR OPERATING, A HOSPITAL IN  ACCORD-
   39  ANCE  WITH  THIS  ARTICLE,  THE  COMMISSIONER  SHALL  CONSIDER  ANY PAST
   40  VIOLATIONS OF STATE OR FEDERAL RULES, REGULATIONS OR  STATUTES  RELATING
   41  TO  EMPLOYER-EMPLOYEE RELATIONS, WORKPLACE SAFETY, COLLECTIVE BARGAINING
   42  OR ANY OTHER LABOR RELATED PRACTICES, OBLIGATIONS  OR  IMPERATIVES.  THE
   43  PUBLIC HEALTH COUNCIL SHALL GIVE SUBSTANTIAL WEIGHT TO VIOLATIONS OF THE
   44  PUBLIC HEALTH LAW PROVISIONS CONCERNING NURSE STAFF AND SUPPORTIVE STAFF
   45  RATIOS.
   46    S 6. Subdivisions 2 and 4 of section 97-aaaa of the state finance law,
   47  as  added  by  chapter  24  of  the laws of 2002, are amended to read as
   48  follows:
   49    2. Such fund shall consist of all moneys received from civil penalties
   50  assessed in actions commenced pursuant to section seven  hundred  forty-
   51  one  of  the  labor law AND CIVIL PENALTIES ASSESSED PURSUANT TO SECTION
   52  TWENTY-EIGHT HUNDRED THIRTY-ONE OF THE PUBLIC HEALTH LAW.
   53    4. Moneys in the account, following appropriation by the  legislature,
   54  shall be expended by the department of health for the purpose of improv-
   55  ing  the  direct  treatment and care of patients in facilities providing
   56  health care services that are licensed pursuant to article  twenty-eight
       A. 2264--A                          9

    1  or  thirty-six  of  the  public  health law or which operate and provide
    2  health care services under the mental hygiene law, the education law, or
    3  the correction law. THE DEPARTMENT  SHALL  GIVE  SUBSTANTIAL  WEIGHT  TO
    4  FUNDING INITIATIVES TO IMPROVE STAFFING RATIOS IN HEALTH CARE FACILITIES
    5  OR TO REDUCE THE USE OF EXCESSIVE OVERTIME AMONG NURSING STAFF.
    6    S 7. If any provision of this act, or any application of any provision
    7  of  this  act,  is held to be invalid, or ruled by any federal agency to
    8  violate or be inconsistent with any  applicable  federal  law  or  regu-
    9  lation, that shall not affect the validity or effectiveness of any other
   10  provision  of  this act, or of any other application of any provision of
   11  this act.
   12    S 8. This act shall take effect on the one hundred eightieth day after
   13  it shall have become a law, provided that any rules and regulations, and
   14  any other actions necessary to implement the provisions of this  act  on
   15  its  effective  date  are  authorized and directed to be completed on or
   16  before such date.
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