S01032 Summary:

BILL NOS01032
 
SAME ASSAME AS A02954
 
SPONSORRIVERA
 
COSPNSRADDABBO, BAILEY, BENJAMIN, BIAGGI, BOYLE, BROOKS, CARLUCCI, COMRIE, GAUGHRAN, GOUNARDES, HARCKHAM, HOYLMAN, JACKSON, KENNEDY, LIU, MARTINEZ, MAYER, METZGER, MONTGOMERY, MYRIE, RAMOS, SALAZAR, SANDERS, SEPULVEDA, SERINO, SERRANO, SKOUFIS, STAVISKY, THOMAS
 
MLTSPNSR
 
Amd 2805, 2801-a & 2805, add 2827 - 2835 & 2895-b, Pub Health L
 
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.
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S01032 Actions:

BILL NOS01032
 
01/10/2019REFERRED TO HEALTH
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S01032 Committee Votes:

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S01032 Floor Votes:

There are no votes for this bill in this legislative session.
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S01032 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1032
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 10, 2019
                                       ___________
 
        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        AN ACT to amend the public health law, in relation to 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-
    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-eight of this article, and such other information
    13  as the 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.
    20    §  3.  The  public  health  law is amended by adding nine new sections
    21  2827, 2828, 2829, 2830, 2831, 2832, 2833,  2834  and  2835  to  read  as
    22  follows:
    23    §  2827. Policy and purpose. The legislature finds and declares all of
    24  the following:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01825-02-9

        S. 1032                             2
 
     1    1. Health care services are becoming complex and  it  is  increasingly
     2  difficult for patients to access integrated services;
     3    2.  The quality of patient care is jeopardized because of nurse staff-
     4  ing shortages and improper utilization of nursing services;
     5    3. To ensure the  adequate  protection  of  patients  in  health  care
     6  settings,  it  is  essential  that qualified registered nurses and other
     7  licensed nurses be  accessible  and  available  to  meet  the  needs  of
     8  patients; and
     9    4.  The basic principles of staffing in the health care setting should
    10  be based on  the  patient's  care  needs,  the  severity  of  condition,
    11  services needed and the complexity surrounding those services.
    12    §  2828.  Safe staffing; definitions. The following words and phrases,
    13  as used in this article, shall have the following  meanings  unless  the
    14  context otherwise plainly requires:
    15    1.  "Acute  care facility" shall mean a hospital other than a residen-
    16  tial health care facility and  shall  also  include  any  facility  that
    17  provides  health care services pursuant to the mental hygiene law, arti-
    18  cle nineteen-G of the executive law or the correction law if such facil-
    19  ity is operated by the state or a political subdivision of the state  or
    20  a public authority or public benefit corporation.
    21    2.  "Acuity  system"  shall mean an established measurement instrument
    22  which (a) predicts nursing care  requirements  for  individual  patients
    23  based on severity of patient illness, need for specialized equipment and
    24  technology,   intensity  of  nursing  interventions  required,  and  the
    25  complexity of clinical nursing judgment needed to design, implement  and
    26  evaluate  the  patient's  nursing  care  plan; (b) details the amount of
    27  nursing care needed, both in number of direct-care nurses and  in  skill
    28  mix of nursing personnel required, on a daily basis, for each patient in
    29  a  nursing  department  or unit; and (c) is stated in terms that readily
    30  can be used and understood by  direct-care  nurses.  The  acuity  system
    31  shall  take  into  consideration  the patient care services provided not
    32  only by registered professional nurses but also  by  licensed  practical
    33  nurses, social workers and other health care personnel.
    34    3. "Assessment tool" shall mean a measurement system that compares the
    35  staffing level in each nursing department or unit against actual patient
    36  nursing  care  requirements in order to review the accuracy of an acuity
    37  system.
    38    4. "Direct-care nurse" and "direct-care nursing staff" shall mean  any
    39  nurse  who  has principal responsibility to oversee or carry out medical
    40  regimens, nursing or other bedside care for one or more patients.
    41    5. "Documented staffing plan"  shall  mean  a  detailed  written  plan
    42  setting forth the minimum number and classification of direct-care nurs-
    43  es required in each nursing department or unit in an acute care facility
    44  for  a  given  year,  based  on  reasonable projections derived from the
    45  patient census and average acuity level within each department  or  unit
    46  during  the  prior  year, the department or unit size and geography, the
    47  nature of services provided and any foreseeable changes in department or
    48  unit size or function during the current year.
    49    6. "Nurse" shall mean a  registered  professional  nurse  or  licensed
    50  practical  nurse licensed pursuant to article one hundred thirty-nine of
    51  the education law.
    52    7. "Nursing care" shall mean that care which is within the  definition
    53  of the practice of nursing pursuant to section sixty-nine hundred two of
    54  the  education  law, or otherwise encompassed with the recognized stand-
    55  ards of nursing practice, including assessment, nursing diagnosis, plan-
    56  ning, intervention, evaluation and patient advocacy.

        S. 1032                             3
 
     1    8. "Safe staffing requirements" shall  mean  the  provisions  of  this
     2  section  and  sections  twenty-eight  hundred twenty-seven, twenty-eight
     3  hundred twenty-nine, twenty-eight hundred thirty,  twenty-eight  hundred
     4  thirty-one,  twenty-eight hundred thirty-two, twenty-eight hundred thir-
     5  ty-three,  twenty-eight  hundred  thirty-four  and  twenty-eight hundred
     6  thirty-five of this article and all rules and regulations adopted pursu-
     7  ant thereto.
     8    9. "Skill mix" shall mean the differences in licensing, specialty  and
     9  experience among direct-care nurses.
    10    10.  "Staffing level" shall mean the actual numerical nurse to patient
    11  ratio within a nursing department or unit.
    12    11. "Unit" shall mean a patient care  component,  as  defined  by  the
    13  department, within an acute care facility.
    14    12. "Non-nursing direct-care staff" shall mean any employee who is not
    15  a  nurse  or  other person licensed, certified or registered under title
    16  eight of the education law whose principal responsibility  is  to  carry
    17  out  patient care for one or more patients or provides direct assistance
    18  in the delivery of patient care.
    19    § 2829. Commissioner and council; powers and duties. The  commissioner
    20  shall:
    21    1.  appoint  an  acute  care  facility  council consisting of thirteen
    22  members. No less than seven members  shall  be  registered  professional
    23  nurses,  three  of whom shall be direct care registered nurses, three of
    24  whom shall be nurse managers and one of whom shall be a  nurse  adminis-
    25  trator.  No  less  than  two  members of the acute care facility council
    26  shall be representatives of recognized or certified collective  bargain-
    27  ing agents of non-nursing direct care staff. There shall be at least two
    28  representatives  of acute care facilities, one representative of a nurs-
    29  ing professional association, and one representative of a recognized  or
    30  certified  bargaining  agent  of nurses. The acute care facility council
    31  shall advise the commissioner in the development of regulations, includ-
    32  ing registered professional nurse to patient staffing  requirements  and
    33  non-nursing  direct-care  staff to patient ratios that are not specified
    34  in this article; the efficacy of acuity systems submitted  for  approval
    35  by the commissioner; the development of an assessment tool used to eval-
    36  uate the efficacy of acuity systems; and review and make recommendations
    37  on  approval  of  staffing  plans  prior to the granting of an operating
    38  certificate by the department.
    39    2. promulgate, after consultation with the acute care  facility  coun-
    40  cil,  the  rules and regulations necessary to carry out the purposes and
    41  provisions of the  safe  staffing  requirements,  including  regulations
    42  defining  terms,  setting  forth  direct-care  nurse  to patient ratios,
    43  setting forth  non-nursing  direct-care  staff  to  patient  ratios  and
    44  prescribing  the process for approving facility specific acuity systems;
    45  and
    46    3. assure that  the  provisions  of  safe  staffing  requirements  are
    47  enforced,  including  the  issuance  of  regulations  which at a minimum
    48  provide for an accessible and confidential system to report the  failure
    49  to  comply  with  such  requirements  and  public  access to information
    50  regarding reports of inspections, results, deficiencies and  corrections
    51  pursuant to such requirements.
    52    §  2830.  Staffing  requirements. 1. Staffing requirements. Each acute
    53  care facility shall ensure that it is staffed in a manner that  provides
    54  sufficient,  appropriately  qualified direct-care nurses in each depart-
    55  ment or unit within such facility in order to  meet  the  individualized
    56  care  needs  of  the  patients therein. At a minimum, each such facility

        S. 1032                             4
 
     1  shall meet the requirements  of  subdivisions  two  and  three  of  this
     2  section.
     3    2.  Staffing plan. The department shall not issue an operating certif-
     4  icate to any acute care facility unless such facility  annually  submits
     5  to the department a documented staffing plan and a written certification
     6  that  the  submitted staffing plan is sufficient to provide adequate and
     7  appropriate delivery of health care services to patients for the ensuing
     8  year. The documented staffing plan shall:
     9    (a) meet the minimum requirements set forth in  subdivision  three  of
    10  this section;
    11    (b)  be adequate to meet any additional requirements provided by other
    12  laws, rules or regulations;
    13    (c) employ and identify an acuity system for  addressing  fluctuations
    14  in  actual patient acuity levels and nursing care requirements requiring
    15  increased staffing levels above the minimums set forth in the plan;
    16    (d) factor in other unit or department activity  such  as  discharges,
    17  transfers  and  admissions,  staff  breaks,  meals, routine and expected
    18  absences from the unit and administrative and  support  tasks  that  are
    19  expected  to be done by direct-care nurses in addition to direct nursing
    20  care;
    21    (e) include a plan to meet  necessary  staffing  levels  and  services
    22  provided  by non-nursing direct-care staff in meeting patient care needs
    23  pursuant to subdivision one of this section; provided, however, that the
    24  staffing plan shall not incorporate or assume that  nursing  care  func-
    25  tions  required  by laws, rules or regulations, or accepted standards of
    26  practice to be performed by a registered professional nurse  are  to  be
    27  performed by other personnel;
    28    (f)  identify the system that will be used to document actual staffing
    29  on a daily basis within each department or unit;
    30    (g) include a written assessment of the accuracy of the  prior  year's
    31  staffing plan in light of actual staffing needs;
    32    (h)  identify  each nurse staff classification referenced in such plan
    33  together with a statement setting forth minimum qualifications for  each
    34  such classification; and
    35    (i)  be  developed  in consultation with a majority of the direct-care
    36  nurses within each department or unit or, where such nurses are  repres-
    37  ented, with the applicable recognized or certified collective bargaining
    38  representative or representatives of the direct-care nurses and of other
    39  supportive and assistive staff.
    40    3.  Minimum  staffing  requirements.  (a) The documented staffing plan
    41  shall incorporate, at a minimum, the following direct-care  nurse-to-pa-
    42  tient ratios:
    43    (i)  one  nurse  to  one  patient: operating room and trauma emergency
    44  units and maternal/child care units for the second  or  third  stage  of
    45  labor;
    46    (ii)  one  nurse  to two patients:   maternal/child care units for the
    47  first stage of labor, and all critical care  areas  including  emergency
    48  critical care and all intensive care units and postanesthesia units;
    49    (iii)  one nurse to three patients: antepartum, emergency room, pedia-
    50  trics, step-down and telemetry units and units for newborns and interme-
    51  diate care nursery units;
    52    (iv) one nurse to three patients:    postpartum  mother/baby  couplets
    53  (maximum six patients per nurse);
    54    (v)  one  nurse  to  four  patients: non-critical antepartum patients,
    55  postpartum mother only units and medical/surgical and acute care psychi-
    56  atric units;

        S. 1032                             5
 
     1    (vi) one nurse to five patients:  rehabilitation  units  and  subacute
     2  patients; and
     3    (vii) one nurse to six patients: well-baby nursery units.
     4    For any units not listed in this paragraph, including, but not limited
     5  to,  psychiatric  units,  and acute care facilities operated pursuant to
     6  the mental hygiene law or  the  correction  law,  the  department  shall
     7  establish  by  regulation  the  appropriate direct-care nurse-to-patient
     8  ratio.
     9    (b) The nurse-to-patient ratios set forth in  paragraph  (a)  of  this
    10  subdivision  shall  reflect  the  maximum number of patients that may be
    11  assigned to each direct-care nurse in a unit at any one time.
    12    (c) There shall be no averaging of the  number  of  patients  and  the
    13  total  number  of  nurses  on the unit during any one shift nor over any
    14  period of time.
    15    (d) The commissioner, in consultation with  the  acute  care  facility
    16  council,  shall  establish  regulations providing for the maintenance of
    17  minimum nurse-to-patient ratios, as set forth in this section, including
    18  during routine or expected absences from the  unit,  such  as  meals  or
    19  breaks.
    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 by facility.   The  minimum  staffing  requirement  and
    36  nurse-to-patient  ratio  set  forth in this section shall be adjusted by
    37  the acute care facility as necessary to reflect the need for  additional
    38  direct-care  nurses.    Additional staff shall be assigned in accordance
    39  with the approved, facility-specific patient acuity system for determin-
    40  ing nursing care requirements, including the severity  of  the  illness,
    41  the  need  for  specialized  equipment and technology, the complexity of
    42  clinical judgment needed to design, implement and evaluate  the  patient
    43  care  plan  and  the  ability  for  self-care,  and the licensure of the
    44  personnel required for care.
    45    7. Commissioner regulations.    The  commissioner  may  by  regulation
    46  require  a  documented  staffing  plan  to  have higher nurse-to-patient
    47  ratios than those set forth in this section.
    48    8.  Nothing contained in this section shall supersede or diminish  the
    49  terms  of  a  collective bargaining agreement that provides for staffing
    50  ratios that exceed the ratios established under this section.
    51    § 2831. Compliance with staffing plan  and  recordkeeping.  1.    Each
    52  acute  care  facility  shall  at  all times staff in accordance with its
    53  documented staffing plan and the staffing standards set forth in section
    54  twenty-eight hundred thirty of this  article;  provided,  however,  that
    55  nothing  in  this  section shall be deemed to preclude any such facility
    56  from implementing higher direct-care nurse-to-patient  staffing  levels,

        S. 1032                             6
 
     1  nor  shall  the  requirements  set  forth  in  such section twenty-eight
     2  hundred thirty of this article be deemed to  supersede  or  replace  any
     3  higher requirements otherwise mandated by law, regulation or contract.
     4    2.  For  purposes of compliance with the minimum staffing requirements
     5  standards set forth in section twenty-eight hundred thirty of this arti-
     6  cle, no nurse shall be assigned, or  included  in  the  nurse-to-patient
     7  ratio  count  in  a nursing unit or a clinical area within an acute care
     8  facility unless that nurse has an appropriate license pursuant to  arti-
     9  cle  one  hundred  thirty-nine  of the education law, has received prior
    10  orientation in that clinical area sufficient to provide competent  nurs-
    11  ing  care  to the patients in that unit or clinical area, and has demon-
    12  strated current competence in providing care in that  unit  or  clinical
    13  area.  Acute  care  facilities  that  utilize temporary nursing agencies
    14  shall have and adhere to a written  procedure  to  orient  and  evaluate
    15  personnel from such sources to ensure adequate orientation and competen-
    16  cy prior to inclusion in the nurse-to-patient ratio.  In the event of an
    17  emergency  staffing situation in which insufficient staffing may lead to
    18  unsafe patient care, nurses may be temporarily assigned to  a  different
    19  unit  or  clinical  area,  provided  that  such nurses shall be assigned
    20  patients appropriate to their skill and competency level.  The  facility
    21  shall  establish  a  consistent  plan  for addressing emergency staffing
    22  situations and monitor outcomes.   Emergencies are  defined  as  natural
    23  disasters, declared emergencies, mass casualty incidents or other events
    24  not  reasonably  anticipated and planned for and not regularly occurring
    25  within the facility.
    26    3. Each acute care facility  shall  maintain  accurate  daily  records
    27  showing:
    28    (a)  the  number  of  patients  admitted, released and present in each
    29  nursing department or unit within such facility;
    30    (b) the individual acuity level of each patient present in each  nurs-
    31  ing department or unit within such facility; and
    32    (c)  the  identity  and  duty  hours of each direct-care nurse in each
    33  nursing department or unit within such facility.
    34    4. Each acute care facility shall maintain daily statistics, by  nurs-
    35  ing  department  and unit, of mortality, morbidity, infection, accident,
    36  injury 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    § 2832. Work assignment policy. 1. General.  Each acute care  facility
    46  shall adopt, disseminate to direct-care nurses and comply with a written
    47  work  assignment policy, that meets the requirements of subdivisions two
    48  and three of this section, detailing the  circumstances  under  which  a
    49  direct-care nurse may refuse a work assignment.
    50    2.  Minimum conditions. At a minimum, the work assignment policy shall
    51  permit a direct-care nurse to refuse an assignment:
    52    (a) for which the nurse is not  prepared  by  education,  training  or
    53  experience  to  safely  fulfill  the  assignment without compromising or
    54  jeopardizing patient safety, the nurse's  ability  to  meet  foreseeable
    55  patient needs or the nurse's license; or
    56    (b) would otherwise violate the safe staffing requirements.

        S. 1032                             7
 
     1    3.  Minimum procedures. At a minimum, the work assignment policy shall
     2  contain procedures for the following:
     3    (a) reasonable requirements for prior notice to the nurse's supervisor
     4  regarding  the nurse's request and supporting reasons for being relieved
     5  of an assignment or continued duty;
     6    (b) where feasible, an opportunity for the supervisor  to  review  the
     7  specific conditions supporting the nurse's request, and to decide wheth-
     8  er  to remedy the conditions, to relieve the nurse of the assignment, or
     9  to deny the nurse's request to be relieved of the assignment or  contin-
    10  ued duty;
    11    (c)  a  process that permits the nurse to exercise the right to refuse
    12  the assignment or continued on-duty status when  the  supervisor  denies
    13  the request to be relieved if:
    14    (i)  the  supervisor rejects the request without proposing a remedy or
    15  the proposed remedy would be inadequate or untimely,
    16    (ii) the complaint and investigation process with a regulatory  agency
    17  would be untimely to address the concern, and
    18    (iii)  the  employee  in good faith believes that the assignment meets
    19  conditions justifying refusal; and
    20    (d) recognition that a nurse who refuses an assignment pursuant  to  a
    21  work assignment policy as set forth in this section shall not be deemed,
    22  by  reason  thereof, to have engaged in negligent or incompetent action,
    23  patient abandonment, or otherwise to have violated any law  relating  to
    24  nursing.
    25    §  2833.  Public disclosure of staffing requirements. Every acute care
    26  facility shall:
    27    1. post in a conspicuous  place  readily  accessible  to  the  general
    28  public  a  notice  prepared by the department setting forth a summary of
    29  the safe staffing requirements applicable to that facility together with
    30  information about where detailed information about the facility's staff-
    31  ing plan and actual staffing may be obtained;
    32    2. upon request, make copies of the  documented  staffing  plan  filed
    33  with the department available to the public; and
    34    3.  upon  request make readily available to the nursing staff within a
    35  department or unit, during each work shift, the following information:
    36    (a) a copy of the current staffing plan for that department or unit,
    37    (b) documentation of the number of direct-care nurses required  to  be
    38  present  during  the shift, based on the approved adopted acuity system,
    39  and
    40    (c) documentation of the actual number of direct-care  nurses  present
    41  during the shift.
    42    §  2834.  Enforcement responsibilities. The department shall not dele-
    43  gate its responsibilities to  enforce  the  safe  staffing  requirements
    44  promulgated pursuant to this article.
    45    § 2835. Private right of action for violations of section twenty-eight
    46  hundred  thirty-two  of  this  article.    Any  acute care facility that
    47  violates the rights of an employee pursuant to an adopted  work  assign-
    48  ment  policy under section twenty-eight hundred thirty-two of this arti-
    49  cle may be held liable to such employee in an action brought in a  court
    50  of  competent  jurisdiction for such legal or equitable relief as may be
    51  appropriate to effectuate the purposes of  the  safe  staffing  require-
    52  ments, including but not limited to reinstatement, promotion, lost wages
    53  and  benefits, and compensatory and consequential damages resulting from
    54  the violation together with an equal amount in liquidated  damages.  The
    55  court  in  such  action  shall, in addition to any judgment awarded to a
    56  prevailing plaintiff, award reasonable  attorneys'  fees  and  costs  of

        S. 1032                             8
 
     1  action  to  be paid by the defendant. An employee's right to institute a
     2  private action pursuant to this subdivision shall not be limited by  any
     3  other right granted by the safe staffing requirements.
     4    §  4.  Section  2801-a of the public health law is amended by adding a
     5  new subdivision 3-b to read as follows:
     6    3-b. In considering character, competence and standing in the communi-
     7  ty under subdivision three of this section, the public health and health
     8  planning council shall consider any past violations of state or  federal
     9  rules,  regulations or statutes relating to employer-employee relations,
    10  workplace safety, collective bargaining or any other labor related prac-
    11  tices, obligations or imperatives. The public health and health planning
    12  council shall give substantial weight to violations of the provisions of
    13  this chapter concerning nurse staff and supportive staff ratios.
    14    § 5. Section 2805 of the public health law is amended by adding a  new
    15  subdivision 3 to read as follows:
    16    3.  In  determining whether to issue or renew an operating certificate
    17  to an applicant seeking to operate, or operating, a hospital in  accord-
    18  ance  with  this  article,  the  commissioner  shall  consider  any past
    19  violations of state or federal rules, regulations or  statutes  relating
    20  to  employer-employee relations, workplace safety, collective bargaining
    21  or any other labor related practices, obligations  or  imperatives.  The
    22  public  health and health planning council shall give substantial weight
    23  to violations of the provisions of this chapter concerning  nurse  staff
    24  and supportive staff ratios.
    25    §  6.  The public health law is amended by adding a new section 2895-b
    26  to read as follows:
    27    § 2895-b. Residential health care facility staffing levels.  1.  Defi-
    28  nitions.  As  used  in  this section, the following terms shall have the
    29  following meanings:
    30    (a) "Certified nurse aide" means any person included in  the  residen-
    31  tial  health care facility nurse aide registry pursuant to section twen-
    32  ty-eight hundred three-j of this chapter.
    33    (b) "Staffing ratio" means the quotient of the number of personnel  in
    34  a  particular category regularly on duty for a particular time period in
    35  a nursing home divided by the number of residents of the nursing home at
    36  that time.
    37    2. Commissioner and residential health care facility  council;  powers
    38  and  duties.  The  commissioner shall: Appoint a residential health care
    39  facility council consisting  of  thirteen  members.  No  less  than  two
    40  members  shall  be direct   care licensed practical nurses, no less than
    41  two members shall be direct care certified nurse assistants and no  less
    42  than    one member shall be a direct care registered professional nurse.
    43  The council shall also include no less than one representative  each  of
    44  recognized or certified collective bargaining agents of registered nurs-
    45  es,  of  non-registered  nurse direct care staff and a representative of
    46  nursing professional associations. The council  shall  also  include  no
    47  less than two representatives of residential health care facility opera-
    48  tors,  two  representatives  of  residential  health care facility nurse
    49  administrators and one  representative  of  consumers.  The  residential
    50  health care facility council shall advise the commissioner in the devel-
    51  opment  of  regulations  relating  to  the staffing standards under this
    52  section; and may from time to time, report to the governor, the legisla-
    53  ture, the public and  the  commissioner  any  recommendations  regarding
    54  staffing levels in residential health care facilities.
    55    3. Staffing standards.  (a) The commissioner, in consultation with the
    56  council, shall, by regulation, establish staffing standards for residen-

        S. 1032                             9
 
     1  tial  health  care  facility  minimum staffing levels to meet applicable
     2  standards of service and care and to provide services to attain or main-
     3  tain the highest practicable physical, mental, and psychosocial well-be-
     4  ing  of  each  resident  of  the  facility.  The commissioner shall also
     5  require by regulation that every residential health care facility  main-
     6  tain  records  on  its  staffing  levels,  report on such records to the
     7  department, and make  such  records  available  for  inspection  by  the
     8  department.
     9    (b) Every residential health care facility shall:
    10    (i) comply with the staffing standards under this section; and
    11    (ii) employ sufficient staffing levels to meet applicable standards of
    12  service and care and to provide service and care and to provide services
    13  to  attain  or  maintain  the  highest practicable physical, mental, and
    14  psychosocial well-being of each resident of the facility.
    15    (c) Subject to subdivision five of this  section,  staffing  standards
    16  under  this section shall, at a minimum, be the staffing standards under
    17  subdivision four of this section.
    18    (d) In determining compliance with the staffing standards  under  this
    19  section,  an  individual  shall not be counted while performing services
    20  that are not direct nursing care, such as administrative services,  food
    21  preparation,  housekeeping,  laundry,  maintenance  services,  or  other
    22  activities that are not direct nursing care.
    23    4.  Statutory standard. Beginning two years after the  effective  date
    24  of this section, every residential health care facility shall maintain a
    25  staffing ratio equal to at least the following:
    26    (a) 2.8 hours of care per resident per day by a certified nurse aide;
    27    (b)  1.3  hours  of  care per resident per day by a licensed practical
    28  nurse or a registered nurse;
    29    (c) 0.75 hours of care per resident per day by a registered nurse; the
    30  minimum of 0.75 hours of care per  resident  provided  by  a  registered
    31  nurse  shall  be divided among all shifts to ensure an appropriate level
    32  of registered nurse care twenty-four hours per day, seven days  a  week,
    33  to meet resident needs; and
    34    (d) Residential health care facilities that care for subacute patients
    35  shall  maintain at a minimum, the following direct-care nurse-to-patient
    36  ratio: one nurse to five patients.
    37    5.  Any residential health care facility that violates the  rights  of
    38  an  employee  pursuant  to  an adopted work assignment policy under this
    39  section may be held liable to such employee in an action  brought  in  a
    40  court  of  competent  jurisdiction for such legal or equitable relief as
    41  may be appropriate to effectuate  the  purposes  of  the  safe  staffing
    42  requirements,  including  but  not  limited to reinstatement, promotion,
    43  lost wages and benefits,  and  compensatory  and  consequential  damages
    44  resulting from the violation together with an equal amount in liquidated
    45  damages.  The  court  in  such action shall, in addition to any judgment
    46  awarded to a prevailing plaintiff, award reasonable attorneys' fees  and
    47  costs  of  action  to  be  paid by the defendant. An employee's right to
    48  institute a private action pursuant to this  subdivision  shall  not  be
    49  limited by any other right granted by the safe staffing requirements.
    50    6. Public disclosure of staffing levels. (a) A residential health care
    51  facility shall post information regarding nurse staffing that the facil-
    52  ity  is  required  to make available to the public under section twenty-
    53  eight hundred five-t of this chapter.  Information under this  paragraph
    54  shall be displayed in a form approved by the department and be posted in
    55  a  manner  which  is visible and accessible to residents, their families
    56  and the staff, as required by the commissioner.

        S. 1032                            10
 
     1    (b) A residential health care facility shall post a  summary  of  this
     2  section,  provided  by  the  department,  in  proximity  to each posting
     3  required by paragraph (a) of this subdivision.
     4    § 7. If any provision of this act, or any application of any provision
     5  of  this  act,  is held to be invalid, or ruled by any federal agency to
     6  violate or be inconsistent with any  applicable  federal  law  or  regu-
     7  lation, that shall not affect the validity or effectiveness of any other
     8  provision  of  this act, or of any other application of any provision of
     9  this act.
    10    § 8. This act shall take effect on the one hundred eightieth day after
    11  it shall have become a law. Effective immediately, the addition,  amend-
    12  ment and/or repeal of any rule or regulation necessary for the implemen-
    13  tation  of  this act on its effective date are authorized to be made and
    14  completed on or before such effective date.
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