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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1921
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the public health law, in relation to establishing the
"safe staffing for hospital care act"
PURPOSE OR GENERAL IDEA OF BILL:
Establishes the "Safe Staffing for Hospital Care Act"
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Short title: "Safe Staffing for Hospital Care Act" Section 2.
Legislative findings and intent. Section 3. Creates Article 28-F of the
public health law: "Safe Staffing for Hospital Care Act", which includes
the following provisions: Licensed Article 28 facilitates must provide
the appropriate numbers of qualified nursing staff in each department
and submit an annual staffing plan to the Department of health with a
written certification plan. The staffing plan must meet the minimum
requirements established in the bill as well as meet additional require-
ments as provided by other law or regulation. An approved acuity system
must be established to address fluctuations in patient care and nursing
care requirements, and must identify administrative work that is
performed by direct care nurses. Requires the Department of Health to
develop regulations by which it will approve a facility's acuity system.
The facility must: identify the assessment tool used to document actual
daily staffing; include a written assessment of the accuracy of the
prior year's staffing plan; and identify each nurse staff classification
with a statement setting forth minimum qualifications for each classi-
fication. Such system must be developed in consultation
with the direct-care nursing staff or an approved collective bargaining
representative. Describes minimum direct-care nurse to patient ratios
for specific department and units. Requires the Department of Health to
adopt regulations to establish minimum nurse to patient ratios. When the
approved acuity system indicates that additional staff are needed, the
facility must staff at the higher level. The skill mix reflected in a
staffing plan must ensure that specific elements in the nursing process
are performed. Registered nurses must constitute 50% of the direct care
nurses in the staffing plan. Prohibits unlicensed personnel from
performing duties established in law or regulation that are limited to
licensed personnel. Requires a facility to be staffed at all times in
accordance with its staffing plan. The facility may staff at higher
nurse to patient staffing ratios. Requires the nurse to be appropriately
licensed, to receive appropriate orientation, and verification that the
nurse can provide competent nursing care in order to be included in the
staffing plan. In order to be licensed as an Article 28 facility, the
facility must maintain accurate daily records containing specific infor-
mation described in the bill. Requires the facility to maintain daily
statistics on mortality, morbidity, infection, accident, injury and
medical errors. Records required by this bill must be maintained for a
period of seven years. Requires records to be made available to the
Department of Health and the public. Provides patient Privacy
protections. Prohibits mandatory overtime except during a state of emer-
gency declared by the Governor. Establishes limits on work hours and
requires specific hours for employees to be off duty. Allows for an
overtime program in excess of limits established in the bill, provided
that such over time is pursuant to a collective bargaining agreement and
that adequate measures to prevent employee fatigue are included in the
agreement. Requires each licensed health care facility to adopt and
disseminate written policies under which direct care nurses may refuse a
work assignment. Describes conditions under which a nurse may refuse a
work assignment. Describes minimum standards to be included in the writ-
ten work assignment policy. Prohibits a facility from penalizing the
employee if the employee reasonably acted in good faith in refusing a
work assignment. Describes situations constituting good faith. Allows
for actions to be brought by any person who has been injured by reason.
of a violation of this article. Requires the Commissioner of Health to
enforce this article and to adopt rules and regulations to promulgate
its provisions. Prohibits health care facilities from taking adverse
actions against an individual because such individual seeks to enforce
this article. Allows for monetary relief to be awarded to an employee
when the employee prevails in any action under this article. Enjoins the
health care facility from continuing to violate the provisions of this
article. The facility,may be required to take affirmative steps as need-
ed. Requires the health care facility to pay reasonable attorney's and
expert witness fees and other costs associated with the action. Section
4. Effective Date
JUSTIFICATION:
This bill will: protect the safety of New York State residents by ensur-
ing that licensed health care facilities hire adequate numbers of quali-
fied nursing staff in each department; require minimum direct-care nurse
to patient ratios; prohibit unlicensed personnel from performing tasks
that are limited by state law or regulation to licensed personnel;
prohibit mandatory overtime;, require the facility to adopt written
regulations under which a nurse may refuse a work assignment, and
prohibit the employee from being penalized if he or she has acted in
good faith in refusing a work assignment. It is the responsibility of
the State to ensure that the delivery of health care services to
patients in health care facilities in New York is adequate and safe.
Furthermore, these facilities Must retain sufficient nursing staff in
order to promote optimal health outcomes. Higher acuity levels among
patients in our health care facilities require safe staffing levels. Low
staffing levels and lack of adequately trained staff can result in
dangerous and unnecessary medical errors and infections, that unfortu-
nately can lead to preventable deaths. A substantial number of nurses
indicate that hospital-patient acuity measurements are in adequate and t
hat many hospitals, rarely, if ever, staff according to an established
acuity measurement tool. Establishing staffing standards will ensure
that health care facilities throughout the state operate in a manner
that guarantees the public safety and the delivery of quality health
care services.
PRIOR LEGISLATIVE HISTORY:
2021-22: A06848; referred to Health
2019-2020: A3374; referred to Health
2017-2018: A919; referred to Health
FISCAL IMPLICATIONS:
Undetermined
EFFECTIVE DATE:
July first after it becomes law.
STATE OF NEW YORK
________________________________________________________________________
1921
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. BICHOTTE HERMELYN, COLTON, WILLIAMS, THIELE,
MEEKS, ZINERMAN, JACKSON, SIMON -- read once and referred 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 and may be cited as
2 the "safe staffing 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03359-01-3
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1 intent of this act is to protect the health and safety of the residents
2 of New York state by ensuring adequate protection and care for patients
3 in healthcare facilities.
4 § 3. The public health law is amended by adding a new article 28-F to
5 read as follows:
6 ARTICLE 28-F
7 SAFE STAFFING FOR HOSPITAL CARE
8 Section 2899-aa. Facility staffing standard.
9 2899-bb. Compliance with plan and recordkeeping.
10 2899-cc. Mandatory overtime and excessive duty hours.
11 2899-dd. Employee rights.
12 2899-ee. Enforcement.
13 § 2899-aa. Facility staffing standard. 1. Each facility licensed
14 pursuant to this article shall ensure that it is staffed in a manner
15 that provides sufficient, appropriately qualified nursing staff of each
16 classification in each department or unit within the facility in order
17 to meet the individualized care needs of patients.
18 2. Notwithstanding any law to the contrary, as a condition of licens-
19 ing, each healthcare facility licensed within the state shall annually
20 submit to the department a documented staffing plan together with a
21 written certification that the staffing plan is sufficient to provide
22 adequate and appropriate delivery of healthcare services to patients for
23 the ensuing year. The staffing plan must:
24 (a) Meet the minimum requirements established in subdivision three of
25 this section.
26 (b) Be adequate to meet any additional requirements provided by other
27 laws or regulations.
28 (c) Employ and identify an approved acuity system for addressing fluc-
29 tuations in actual patient acuity levels and nursing care requirements
30 requiring increased staffing levels above the minimums set forth in the
31 plan.
32 (d) Factor in other unit or department work, such as discharges,
33 transfers and admissions, and administrative and support tasks, that is
34 expected to be done by direct-care nurses in addition to direct nursing
35 care.
36 (e) Identify the assessment tool used to validate the acuity system
37 relied on in the plan.
38 (f) Identify the system that will be used to document actual staffing
39 on a daily basis within each department or unit.
40 (g) Include a written assessment of the accuracy of the prior year's
41 staffing plan in light of actual staffing needs.
42 (h) Identify each nurse staff classification referenced therein
43 together with a statement setting forth minimum qualifications for each
44 such classification.
45 (i) Be developed in consultation with the direct-care nursing staff
46 within each department or unit or, where such staff is represented, with
47 the applicable recognized or certified collective bargaining represen-
48 tative or representatives of the direct-care nursing staff.
49 3. The healthcare facility's staffing plan must incorporate, at a
50 minimum, the following direct-care nurse-to-patient ratios: pediatric
51 recovery room--one to one, operating room circulating nurse--one to one,
52 special procedures (e.g. cath lab, radiology, endoscopy)--one to one,
53 trauma--one to one, burn unit--one to two, critical care--one to two,
54 labor and delivery--one to two, adult recovery room--one to two, emer-
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1 gency room--one to three, oncology/chemotherapy--one to three, interme-
2 diate care unit--one to three, telemetry--one to three, mother/baby
3 couplets and normal post-partum--one to four, pediatrics--one to four,
4 psychiatric unit--one to four, adult medical-surgical unit--one to six.
5 4. The department shall adopt regulations that establish minimum,
6 specific, numerical direct-care nurse-to-patient ratios for other
7 healthcare facility nursing departments and units that must be incorpo-
8 rated into the staffing plan.
9 5. The minimum numbers of direct-care nurse-to-patient staff set forth
10 in this section shall constitute the minimum numbers of direct-care
11 nursing staff that shall be assigned to and be present within a nursing
12 department or unit. Where the approved acuity system adopted by the
13 facility indicates that additional staff is required, the healthcare
14 facility must staff at the higher staffing level.
15 6. The skill mix reflected in a staffing plan must assure that all of
16 the following elements of the nursing process are performed in the plan-
17 ning and delivery of care for each patient:
18 (a) Assessment, nursing diagnosis, planning, intervention, evaluation
19 and patient advocacy.
20 (b) Registered nurses must constitute at least fifty percent of the
21 direct-care nurses included in the staffing plan.
22 (c) The skill mix may not incorporate or assume that nursing care
23 functions required by licensing law or regulations or accepted standards
24 of practice to be performed by a licensed nurse are to be performed by
25 unlicensed personnel.
26 7. The department shall adopt regulations prescribing the method by
27 which it will approve a healthcare facility's acuity system. Such regu-
28 lations may include a system for class approval of acuity systems.
29 § 2899-bb. Compliance with plan and recordkeeping. 1. Notwithstanding
30 any law to the contrary, as a condition of licensing, a healthcare
31 facility licensed within the state must at all times staff in accordance
32 with its staffing plan and the staffing standards established pursuant
33 to this article, provided, however, that nothing herein shall be deemed
34 to preclude a healthcare facility from implementing higher direct-care
35 nurse-to-patient staffing levels.
36 2. No nurse shall be assigned, or included in the count of assigned
37 nursing staff for purposes of compliance with minimum staffing require-
38 ments, in a nursing department or unit or a clinical area within the
39 healthcare facility without appropriate licensing, prior orientation,
40 and verification that the nurse is capable of providing competent nurs-
41 ing care to the patients therein.
42 3. As a condition of licensure, each healthcare facility licensed
43 pursuant to this article shall maintain accurate daily records showing:
44 (a) The number of patients admitted, released and present in each
45 nursing department or unit within the facility.
46 (b) The individual acuity level of each patient present in each nurs-
47 ing department or unit within the facility.
48 (c) The identity and duty hours of each direct-care nurse in each
49 nursing department or unit within the facility.
50 4. Notwithstanding any law to the contrary, as a condition of licen-
51 sure, each healthcare facility licensed within the state shall maintain
52 daily statistics, by nursing department and unit, of mortality, morbidi-
53 ty, infection, accident, injury and medical errors.
54 5. All records required to be kept pursuant to this section shall be
55 maintained for a period of seven years.
A. 1921 4
1 6. All records required to be kept pursuant to this section shall be
2 made available upon request to the department and to the public,
3 provided, however, that information released to the public shall not
4 contain the name or other personal identifying information, apart from
5 acuity level, about any individual patient.
6 § 2899-cc. Mandatory overtime and excessive duty hours. 1. Except
7 during a state of emergency declared by the governor, a healthcare
8 facility may not mandate or otherwise require, directly or indirectly, a
9 healthcare employee to work or be in on-duty status in excess of any one
10 of the following:
11 (a) The scheduled work shift or duty period.
12 (b) Twelve hours in a twenty-four-hour period.
13 (c) Eighty hours in a consecutive fourteen-day period.
14 "Mandate" for the purposes of this subdivision means any request
15 which, if refused or declined by the healthcare employee, may result in
16 discharge, discipline, loss of promotion, or other adverse employment
17 consequence. Nothing in this section is intended to prohibit a health-
18 care employee from voluntarily working overtime.
19 2. Except during a state of emergency declared by the governor:
20 (a) No healthcare employee may work or be in on-duty status more than
21 sixteen hours in any twenty-four-hour period.
22 (b) Any healthcare employee working sixteen hours in any twenty-four-
23 hour period must have at least eight consecutive hours off duty before
24 being required to return to duty.
25 (c) No healthcare employee may be required to work or be on-duty more
26 than seven consecutive days without at least one consecutive twenty-
27 four-hour period off duty within that time.
28 3. A work shift schedule or overtime program established pursuant to a
29 collective bargaining agreement negotiated on behalf of the healthcare
30 employees by a bona fide labor organization may provide for mandatory
31 on-duty hours in excess of that permitted under this section, provided
32 adequate measures are included in the agreement to ensure against exces-
33 sive fatigue on the part of the affected employees.
34 § 2899-dd. Employee rights. 1. Notwithstanding any law to the contra-
35 ry, as a condition of licensure, each healthcare facility licensed with-
36 in the state shall adopt and disseminate to direct-care nursing staff a
37 written policy that complies with the requirements set forth in subdivi-
38 sions two and three of this section, detailing the circumstances under
39 which a direct-care nurse may refuse a work assignment.
40 2. At a minimum, the work assignment policy shall permit a direct-care
41 nurse to refuse an assignment for which:
42 (a) The nurse is not prepared by education, training or experience to
43 safely fulfill the assignment without compromising or jeopardizing
44 patient safety, the nurse's ability to meet foreseeable patient needs,
45 or the nurse's license.
46 (b) The nurse has volunteered to work overtime but determines that his
47 or her level of fatigue and/or decreased alertness would compromise or
48 jeopardize patient safety, the nurse's ability to meet foreseeable
49 patient needs, or the nurse's license.
50 (c) The assignment otherwise would violate requirements established
51 pursuant to this article.
52 3. At a minimum, the work assignment policy shall contain procedures
53 for the following:
54 (a) Reasonable requirements for prior notice to a nurse's supervisor
55 regarding the nurse's request and supporting reasons for being relieved
56 of an assignment or continued duty.
A. 1921 5
1 (b) Where feasible, an opportunity for the supervisor to review the
2 specific conditions supporting the nurse's request, and to decide wheth-
3 er to remedy the conditions, to relieve the nurse of the assignment, or
4 to deny the nurse's request to be relieved of the assignment or contin-
5 ued duty.
6 (c) A process which permits the nurse to exercise the right to refuse
7 the assignment or continued on-duty status when the supervisor denies
8 the request to be relieved if:
9 (i) The supervisor rejects the request without proposing a remedy, or
10 the proposed remedy would be inadequate or untimely.
11 (ii) The complaint and investigation process with the department would
12 be untimely to address the concern.
13 (iii) The employee in good faith believes that the assignment meets
14 conditions justifying refusal.
15 4. An employee is deemed to act in good faith if the employee reason-
16 ably believes that the information reported or disclosed is true, and
17 that a violation has occurred or may occur. A healthcare facility
18 covered by this article shall not penalize, discriminate or retaliate in
19 any manner against an employee with respect to compensation, terms,
20 conditions or privileges of employment, who in good faith, individually
21 or in conjunction with another person or persons:
22 (a) Reports a violation or suspected violation of this section to a
23 public regulatory agency, a private accreditation body, or management
24 personnel of the healthcare facility,
25 (b) Initiates, cooperates or otherwise participates in an investi-
26 gation or proceeding brought by a regulatory agency or private accredi-
27 tation body concerning matters covered by this section,
28 (c) Informs or discusses with other employees, with representative or
29 representatives of the employees, with patients or patient represen-
30 tatives, or with the public, violations or suspected violations of this
31 section, or
32 (d) Otherwise avails himself or herself of the rights established
33 pursuant to this article.
34 § 2899-ee. Enforcement. 1. Notwithstanding any right of action granted
35 to any governmental body pursuant to this article, any person who has
36 been injured by reason of a violation of this article may bring an
37 action in his or her own name to enjoin such unlawful act, or an action
38 to recover his or her actual damages, or both such actions.
39 2. This article shall be enforced by the commissioner, who shall
40 promulgate such regulations as are necessary to implement and administer
41 compliance. Regulations shall include procedures to receive, investi-
42 gate, and attempt to resolve complaints, and bring actions in any court
43 of competent jurisdiction to recover appropriate relief for aggrieved
44 employees.
45 3. No healthcare facility shall discharge, demote, harass or otherwise
46 take adverse actions against any individual because such individual
47 seeks to enforce this article, or testifies, assists or participates in
48 any manner in an investigation, hearing or other proceeding to enforce
49 this article.
50 4. In any action under this article in which an employee prevails:
51 (a) The employee shall be awarded monetary relief, including back pay
52 in an amount equal to the difference between the employee's actual earn-
53 ings and what the employee would have earned but for the healthcare
54 facility's unlawful practices, and an additional amount in punitive
55 damages, as appropriate.
A. 1921 6
1 (b) The healthcare facility shall be enjoined from continuing to
2 violate the provisions of this article and may be ordered to take such
3 additional affirmative steps as are necessary to ensure an end to the
4 unlawful practices.
5 (c) The healthcare facility shall pay a reasonable attorneys' fee,
6 reasonable expert witness fees, and other costs of the action.
7 § 4. This act shall take effect on the first of July next succeeding
8 the date on which it shall have become a law. Effective immediately the
9 addition, amendment and/or repeal of any rule or regulation necessary
10 for the implementation of this act on its effective date are authorized
11 to be made and completed on or before such date.
