Amd SS2805 & 2801-a, add SS2821 - 2829, Pub Health L; amd S97-aaaa, St Fin L
Enacts the "safe staffing for quality care act" to require acute care facilities 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.
STATE OF NEW YORK
________________________________________________________________________
731
2009-2010 Regular Sessions
IN ASSEMBLY(Prefiled)
January 7, 2009
___________
Introduced by M. of A. GOTTFRIED, GALEF -- Multi-Sponsored by -- M. of
A. KELLNER, PHEFFER -- read once and referred to the Committee on
Health
AN ACT to amend the public health law, in relation to enacting the "safe
staffing for quality care act" 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 § 2. Paragraphs (a) and (b) of subdivision 2 of section 2805 of the
4 public health law, paragraph (a) as amended by chapter 923 of the laws
5 of 1973 and paragraph (b) as added by chapter 795 of the laws of 1965,
6 are amended to read as follows:
7 (a) Application for an operating certificate for a hospital shall be
8 made upon forms prescribed by the department. The application shall
9 [contain] include the name of the hospital, the kind or kinds of hospi-
10 tal service to be provided, the location and physical description of the
11 institution, a documented staffing plan, as defined in section twenty-
12 eight hundred twenty of this article, and such other information as the
13 department may require.
14 (b) An operating certificate shall not be issued by the department
15 unless it finds that the premises, equipment, personnel, documented
16 staffing plan, rules and by-laws, standards of medical care, and hospi-
17 tal service are fit and adequate and that the hospital will be operated
18 in the manner required by this article and rules and regulations there-
19 under.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00402-02-9
A. 731 2
1 § 3. The public health law is amended by adding nine new sections
2 2821, 2822, 2823, 2824, 2825, 2826, 2827, 2828 and 2829 to read as
3 follows:
4 § 2821. Policy and purpose. The legislature finds and declares all of
5 the following:
6 1. Health care services are becoming complex and it is increasingly
7 difficult for patients to access integrated services;
8 2. The quality of patient care is jeopardized because of nurse staff-
9 ing shortages and improper utilization of nursing services;
10 3. To ensure the adequate protection of patients in health care
11 settings, it is essential that qualified registered nurses and other
12 licensed nurses be accessible and available to meet the needs of
13 patients; and
14 4. The basic principles of staffing in the health care setting should
15 be based on the patient's care needs, the severity of condition,
16 services needed and the complexity surrounding those services.
17 § 2822. Safe staffing; definitions. The following words and phrases,
18 as used in this article, shall have the following meanings unless the
19 context otherwise plainly requires:
20 1. "Acute care facility" shall mean a general hospital, and shall also
21 include any chronic disease hospital, maternity hospital, outpatient
22 department, emergency center or surgical center, and shall also include
23 any facility that provides health care services pursuant to the mental
24 hygiene law or the correction law if such facility is operated by the
25 state or a political subdivision of the state or a public authority or
26 public benefit corporation.
27 2. "Acuity system" shall mean an established measurement instrument
28 which (a) predicts nursing care requirements for individual patients
29 based on severity of patient illness, need for specialized equipment and
30 technology, intensity of nursing interventions required, and the
31 complexity of clinical nursing judgment needed to design, implement and
32 evaluate the patient's nursing care plan; (b) details the amount of
33 nursing care needed, both in number of direct-care nurses and in skill
34 mix of nursing personnel required, on a daily basis, for each patient in
35 a nursing department or unit; and (c) is stated in terms that readily
36 can be used and understood by direct-care nurses. The acuity system
37 shall take into consideration the patient care services provided not
38 only by registered professional nurses but also by licensed practical
39 nurses, social workers and other health care personnel.
40 3. "Assessment tool" shall mean a measurement system that compares the
41 staffing level in each nursing department or unit against actual patient
42 nursing care requirements in order to review the accuracy of an acuity
43 system.
44 4. "Direct-care nurse" and "direct-care nursing staff" shall mean any
45 nurse who has principal responsibility to oversee or carry out medical
46 regimens, nursing or other bedside care for one or more patients.
47 5. "Documented staffing plan" shall mean a detailed written plan
48 setting forth the minimum number and classification of direct-care nurs-
49 es required in each nursing department or unit in an acute care facility
50 for a given year, based on reasonable projections derived from the
51 patient census and average acuity level within each department or unit
52 during the prior year, the department or unit size and geography, the
53 nature of services provided and any foreseeable changes in department or
54 unit size or function during the current year.
A. 731 3
1 6. "Nurse" shall mean a registered professional nurse or licensed
2 practical nurse licensed pursuant to article one hundred thirty-nine of
3 the education law.
4 7. "Nursing care" shall mean that care which is within the definition
5 of the practice of nursing pursuant to section sixty-nine hundred two of
6 the education law, or otherwise encompassed with the recognized stand-
7 ards of nursing practice, including assessment, nursing diagnosis, plan-
8 ning, intervention, evaluation and patient advocacy.
9 8. "Safe staffing requirements" shall mean the provisions of sections
10 twenty-eight hundred twenty-one through twenty-eight hundred twenty-nine
11 of this article and all rules and regulations adopted pursuant thereto.
12 9. "Skill mix" shall mean the differences in licensing, specialty and
13 experience among direct-care nurses.
14 10. "Staffing level" shall mean the actual numerical nurse to patient
15 ratio within a nursing department or unit.
16 11. "Unit" shall mean a patient care component, as defined by the
17 department, within an acute care facility.
18 § 2823. Commissioner and council; powers and duties. The commissioner
19 shall:
20 1. promulgate, after consultation with the council, the rules and
21 regulations necessary to carry out the purposes and provisions of the
22 safe staffing requirements, including regulations defining terms,
23 setting forth direct-care nurse to patient ratios and prescribing the
24 process for approving acuity systems, which may include a system for
25 class approval of acuity systems; and
26 2. assure that the provisions of safe staffing requirements are
27 enforced, including the issuance of regulations which at a minimum
28 provide for an accessible and confidential system to report the failure
29 to comply with such requirements and public access to information
30 regarding reports of inspections, results, deficiencies and corrections
31 pursuant to such requirements.
32 3. establish a committee to advise in the development of regulations,
33 including registered professional nurse to patient staffing requirements
34 that are not specified in this article. The committee shall advise the
35 commissioner on the efficacy of acuity systems submitted for approval,
36 and review and make recommendations on approval of staffing plans prior
37 to the granting of an operating certificate by the department. The
38 committee shall have thirteen members. No less than sixty percent of the
39 members of the committee shall be registered professional nurses. The
40 committee shall include registered professional nurse direct care
41 providers, representatives of acute care facilities, and representatives
42 of nursing professional associations and recognized or certified collec-
43 tive bargaining representative of nurses and of other supportive and
44 assistive staff. The governor shall appoint the chair and six other
45 members, two members shall be appointed by the speaker of the assembly,
46 one member shall be appointed by the minority leader of the assembly,
47 two members shall be appointed by the temporary president of the senate
48 and one member shall be appointed by the minority leader of the senate.
49 § 2824. Staffing requirements. 1. Staffing requirements. Each acute
50 care facility shall ensure that it is staffed in a manner that provides
51 sufficient, appropriately qualified direct-care nurses in each depart-
52 ment or unit within such facility in order to meet the individualized
53 care needs of the patients therein. At a minimum, each such facility
54 shall meet the requirements of subdivisions two and three of this
55 section.
A. 731 4
1 2. Staffing plan. The department shall not issue an operating certif-
2 icate to any acute care facility unless such facility annually submits
3 to the department a documented staffing plan and a written certification
4 that the submitted staffing plan is sufficient to provide adequate and
5 appropriate delivery of health care services to patients for the ensuing
6 year. The documented staffing plan shall:
7 (a) meet the minimum requirements set forth in subdivision three of
8 this section;
9 (b) be adequate to meet any additional requirements provided by other
10 laws, rules or regulations;
11 (c) employ and identify an approved acuity system for addressing fluc-
12 tuations in actual patient acuity levels and nursing care requirements
13 requiring increased staffing levels above the minimums set forth in the
14 plan;
15 (d) factor in other unit or department activity such as discharges,
16 transfers and admissions, and administrative and support tasks that is
17 expected to be done by direct-care nurses in addition to direct nursing
18 care;
19 (e) factor in the staffing level of and services provided by other
20 healthcare personnel and supportive personnel in meeting patient care
21 needs; provided, however, that the staffing plan shall not incorporate
22 or assume that nursing care functions required by laws, rules or regu-
23 lations, or accepted standards of practice to be performed by a regis-
24 tered professional nurse are to be performed by other personnel;
25 (f) identify the assessment tool used to validate the acuity system
26 relied on in the plan;
27 (g) identify the system that will be used to document actual staffing
28 on a daily basis within each department or unit;
29 (h) include a written assessment of the accuracy of the prior year's
30 staffing plan in light of actual staffing needs;
31 (i) identify each nurse staff classification referenced in such plan
32 together with a statement setting forth minimum qualifications for each
33 such classification; and
34 (j) be developed in consultation with a majority of the direct-care
35 nurses within each department or unit or, where such nurses are repres-
36 ented, with the applicable recognized or certified collective bargaining
37 representative or representatives of the direct-care nurses and of other
38 supportive and assistive staff.
39 3. Minimum staffing requirements. (a) The documented staffing plan
40 shall incorporate, at a minimum, the following direct-care nurse-to-pa-
41 tient ratios:
42 (i) one nurse to one patient: operating room and trauma emergency
43 units and all critical care areas including emergency critical care and
44 all intensive care units and maternal/child care units for the second or
45 third stage of labor;
46 (ii) one nurse to two patients: maternal/child care units for the
47 first stage of labor, and postanesthesia units;
48 (iii) one nurse to three patients: antepartum, emergency room, pedia-
49 trics, step-down and telemetry units and units for newborns and interme-
50 diate care nursery units;
51 (iv) one nurse to three patients: postpartum mother/baby couplets
52 (maximum six patients per nurse);
53 (v) one nurse to four patients: non-critical antepartum patients, and
54 medical/surgical and acute care psychiatric units;
55 (vi) one nurse to five patients: rehabilitation units; and
56 (vii) one nurse to six patients: well-baby nursery units.
A. 731 5
1 For any units not listed in this paragraph, including psychiatric
2 units, and acute care facilities operated pursuant to the mental hygiene
3 law or the correction law, the department shall establish by regulation
4 the appropriate direct-care nurse-to-patient ratio.
5 (b) The nurse-to-patient ratios set forth in paragraph (a) of this
6 subdivision shall reflect the maximum number of patients that may be
7 assigned to each direct-care nurse in a unit during one shift. A nurse,
8 including a nurse administrator or supervisor, who does not have princi-
9 pal responsibility as a direct-care nurse for a specific patient shall
10 not be included in the calculation of the nurse-to-patient ratio.
11 4. Licensed practical nurses. In any situation in which licensed prac-
12 tical nurses are included in the documented staffing plan, any patients
13 assigned to the licensed practical nurse shall also be included in
14 calculating the number of patients assigned to any registered profes-
15 sional nurse who is required by law, rule, regulation, contract or prac-
16 tice to supervise or oversee the direct-nursing care provided by the
17 licensed practical nurse.
18 5. Skill mix. The skill mix shall not incorporate or assume that nurs-
19 ing care functions required by section sixty-nine hundred two of the
20 education law or accepted standards of practice to be performed by a
21 registered professional nurse are to be performed by a licensed practi-
22 cal nurse or unlicensed assistive personnel, or that nursing care func-
23 tions required by section sixty-nine hundred two of the education law or
24 accepted standards of practice to be performed by a licensed practical
25 nurse are to be performed by unlicensed assistive personnel.
26 6. Adjustments. The minimum staffing requirement and nurse-to-patient
27 ratio set forth in this section shall be adjusted as necessary to
28 reflect the need for additional direct-care nurses necessary to ensure
29 adequate staffing of each nursing department or unit, in accordance with
30 an approved acuity system.
31 7. Department regulations. Nothing in this section shall be deemed to
32 preclude the department by rule or regulation from establishing and
33 requiring a documented staffing plan to have higher nurse-to-patient
34 ratios than those set forth in this section.
35 8. Nothing contained in this section shall be deemed to alter, affect
36 the validity of, modify the terms of, or impair any collective bargain-
37 ing agreement.
38 § 2825. Compliance with staffing plan and recordkeeping. 1. As a
39 condition for the maintenance of an operating certificate, each acute
40 care facility shall at all times staff in accordance with its documented
41 staffing plan and the staffing standards set forth in section twenty-
42 eight hundred twenty-four of this article; provided, however, that noth-
43 ing in this section shall be deemed to preclude any such facility from
44 implementing higher direct-care nurse-to-patient staffing levels, nor
45 shall the requirements set forth in such section twenty-eight hundred
46 twenty-four of this article be deemed to supersede or replace any higher
47 requirements otherwise mandated by law, rule, regulation or contract.
48 2. For purposes of compliance with the minimum staffing requirements
49 standards set forth in section twenty-eight hundred twenty-four of this
50 article, no nurse shall be assigned, or included in the nurse-to-patient
51 ratio count in a nursing unit or a clinical area within an acute care
52 facility unless that nurse has an appropriate license pursuant to arti-
53 cle one hundred thirty-nine of the education law, has received prior
54 orientation in that clinical area sufficient to provide competent nurs-
55 ing care to the patients in that unit or clinical area, and has demon-
56 strated current competence in providing care in that unit or clinical
A. 731 6
1 area. Acute care facilities that utilize temporary nursing agencies
2 shall have and adhere to a written procedure to orient and evaluate
3 personnel from such sources to ensure adequate orientation and competen-
4 cy prior to inclusion in the nurse-to-patient ratio. In the event of an
5 emergency staffing situation in which insufficient staffing may lead to
6 unsafe patient care, nurses may be temporarily assigned to a different
7 unit or clinical area, provided that such nurses shall be assigned
8 patients appropriate to their skill and competency level. The facility
9 shall establish a consistent plan for addressing emergency staffing
10 situations and monitor outcomes. Emergencies are defined as natural
11 disasters, declared emergencies, mass casualty incidents or other events
12 not reasonably anticipated and planned for and not regularly occurring
13 within the facility.
14 3. As a condition for the maintenance of an operating certificate,
15 each acute care facility shall maintain accurate daily records showing:
16 (a) the number of patients admitted, released and present in each
17 nursing department or unit within such facility;
18 (b) the individual acuity level of each patient present in each nurs-
19 ing department or unit within such facility; and
20 (c) the identity and duty hours of each direct-care nurse in each
21 nursing department or unit within such facility.
22 4. As a condition for the maintenance of an operating certificate,
23 each acute care facility shall maintain daily statistics, by nursing
24 department and unit, of mortality, morbidity, infection, accident, inju-
25 ry and medical errors.
26 5. All records required to be kept pursuant to this section shall be
27 maintained for a period of seven years.
28 6. All records required to be kept pursuant to this section shall be
29 made available upon request to the department and to the public;
30 provided, however, that information released to the public shall comply
31 with the applicable patient privacy laws, rules and regulations, and
32 that in facilities operated pursuant to the correction law the identity
33 and hours of staff shall not be released to the public.
34 § 2826. Work assignment policy. 1. General. As a condition for the
35 maintenance of an operating certificate, each acute care facility shall
36 adopt, disseminate to direct-care nurses and comply with a written work
37 assignment policy, that meets the requirements of subdivisions two and
38 three of this section, detailing the circumstances under which a
39 direct-care nurse may refuse a work assignment.
40 2. Minimum conditions. At a minimum, the work assignment policy shall
41 permit a direct-care nurse to refuse an assignment:
42 (a) for which the nurse is not prepared by education, training or
43 experience to safely fulfill the assignment without compromising or
44 jeopardizing patient safety, the nurse's ability to meet foreseeable
45 patient needs or the nurse's license; or
46 (b) would otherwise violate the safe staffing requirements.
47 3. Minimum procedures. At a minimum, the work assignment policy shall
48 contain procedures for the following:
49 (a) reasonable requirements for prior notice to the nurse's supervisor
50 regarding the nurse's request and supporting reasons for being relieved
51 of an assignment or continued duty;
52 (b) where feasible, an opportunity for the supervisor to review the
53 specific conditions supporting the nurse's request, and to decide wheth-
54 er to remedy the conditions, to relieve the nurse of the assignment, or
55 to deny the nurse's request to be relieved of the assignment or contin-
56 ued duty;
A. 731 7
1 (c) a process that permits the nurse to exercise the right to refuse
2 the assignment or continued on-duty status when the supervisor denies
3 the request to be relieved if:
4 (i) the supervisor rejects the request without proposing a remedy or
5 the proposed remedy would be inadequate or untimely,
6 (ii) the complaint and investigation process with a regulatory agency
7 would be untimely to address the concern, and
8 (iii) the employee in good faith believes that the assignment meets
9 conditions justifying refusal; and
10 (d) recognition that a nurse who refuses an assignment pursuant to a
11 work assignment policy as set forth in this section shall not be deemed,
12 by reason thereof, to have engaged in negligent or incompetent action,
13 patient abandonment, or otherwise to have violated any law relating to
14 nursing.
15 § 2827. Public disclosure of staffing requirements. Every acute care
16 facility shall:
17 1. post in a conspicuous place readily accessible to the general
18 public a notice prepared by the department setting forth a summary of
19 the safe staffing requirements applicable to that facility together with
20 information about where detailed information about the facility's staff-
21 ing plan and actual staffing may be obtained;
22 2. upon request, make copies of the documented staffing plan filed
23 with the department available to the public; and
24 3. upon request make readily available to the nursing staff within a
25 department or unit, during each work shift, the following information:
26 (a) a copy of the current staffing plan for that department or unit,
27 (b) documentation of the number of direct-care nurses required to be
28 present during the shift, based on the approved adopted acuity system,
29 and
30 (c) documentation of the actual number of direct-care nurses present
31 during the shift.
32 § 2828. Enforcement responsibilities. The department shall not dele-
33 gate its responsibilities to enforce the safe staffing requirements
34 promulgated pursuant to this article.
35 § 2829. Enforcement and penalties. 1. Civil penalty. Any person,
36 regardless of whether that person possesses an operating certificate,
37 who has committed a violation of any of the provisions of the safe
38 staffing requirements, including failure to correct a serious violation
39 (as defined by regulation) within the time specified in a deficiency
40 citation, may be assessed a civil penalty by order of the department of
41 up to five hundred dollars for each deficiency for each day that each
42 deficiency continues; provided, however, that an acute health care
43 facility that fails to comply with the requirements of section twenty-
44 eight hundred twenty-four of this article may be assessed a civil penal-
45 ty by order of the department of up to ten thousand dollars for each day
46 of non-compliance. Civil penalties shall be collected from the date such
47 facility receives notice of violation until the date such violation is
48 corrected.
49 2. Civil penalty for interference with reporting obligations. Any
50 person or acute care facility that fails to report or falsifies informa-
51 tion, or coerces, threatens, intimidates or otherwise influences anoth-
52 er person to fail to report or to falsify information required to be
53 reported under the safe staffing requirements, may be assessed a civil
54 penalty of up to ten thousand dollars for each such incident.
55 3. Private right of action for violations of section twenty-eight
56 hundred twenty-six of this article. Any acute care facility that
A. 731 8
1 violates the rights of an employee pursuant to an adopted work assign-
2 ment policy under section twenty-eight hundred twenty-six of this arti-
3 cle may be held liable to such employee in an action brought in a court
4 of competent jurisdiction for such legal or equitable relief as may be
5 appropriate to effectuate the purposes of the safe staffing require-
6 ments, including but not limited to reinstatement, promotion, lost wages
7 and benefits, and compensatory and consequential damages resulting from
8 the violation together with an equal amount in liquidated damages. The
9 court in such action shall, in addition to any judgment awarded to a
10 prevailing plaintiff, award reasonable attorneys' fees and costs of
11 action to be paid by the defendant. An employee's right to institute a
12 private action pursuant to this subdivision shall not be limited by any
13 other 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 council
18 shall consider any past violations of state or federal rules, regu-
19 lations or statutes relating to employer-employee relations, workplace
20 safety, collective bargaining or any other labor related practices,
21 obligations or imperatives. The public health council shall give
22 substantial weight to violations of the public health law provisions
23 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 council shall give substantial weight to violations of the
33 public health law provisions concerning nurse staff and supportive staff
34 ratios.
35 § 6. Subdivisions 2 and 4 of section 97-aaaa of the state finance law,
36 as added by chapter 24 of the laws of 2002, are amended to read as
37 follows:
38 2. Such fund shall consist of all moneys received from civil penalties
39 assessed in actions commenced pursuant to section seven hundred forty-
40 one of the labor law and civil penalties assessed pursuant to section
41 twenty-eight hundred twenty-nine of the public health law.
42 4. Moneys in the account, following appropriation by the legislature,
43 shall be expended by the department of health for the purpose of improv-
44 ing the direct treatment and care of patients in facilities providing
45 health care services that are licensed pursuant to article twenty-eight
46 or thirty-six of the public health law or which operate and provide
47 health care services under the mental hygiene law, the education law, or
48 the correction law. The department shall give substantial weight to
49 funding initiatives to improve staffing ratios in health care facilities
50 or to reduce the use of excessive overtime among nursing staff.
51 § 7. If any provision of this act, or any application of any provision
52 of this act, is held to be invalid, or ruled by any federal agency to
53 violate or be inconsistent with any applicable federal law or regu-
54 lation, that shall not affect the validity or effectiveness of any other
55 provision of this act, or of any other application of any provision of
56 this act.
A. 731 9
1 § 8. This act shall take effect on the one hundred eightieth day after
2 it shall have become a law, provided that any rules and regulations, and
3 any other actions necessary to implement the provisions of this act on
4 its effective date are authorized and directed to be completed on or
5 before such date.
