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A07119 Summary:

BILL NOA07119
 
SAME ASSAME AS S06346
 
SPONSORGunther
 
COSPNSRGottfried, Jacobson, Zebrowski, Lunsford, Rosenthal L, Perry, Burdick, Abinanti, Pretlow, Weinstein, Barron, Simon, Dinowitz, Bichotte Hermelyn, Santabarbara, Kelles, Rivera JD, Steck, Anderson, Ramos, Darling, Richardson, Burke
 
MLTSPNSRCook
 
Add 2895-b, Pub Health L
 
Provides for standard minimum nursing home staffing levels by regulations promulgated by the commissioner of health.
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A07119 Actions:

BILL NOA07119
 
04/22/2021referred to health
04/27/2021reported referred to codes
04/28/2021reported referred to ways and means
04/28/2021reported
04/29/2021advanced to third reading cal.278
05/04/2021passed assembly
05/04/2021delivered to senate
05/04/2021REFERRED TO HEALTH
05/04/2021SUBSTITUTED FOR S6346
05/04/20213RD READING CAL.733
05/04/2021PASSED SENATE
05/04/2021RETURNED TO ASSEMBLY
06/07/2021delivered to governor
06/18/2021signed chap.156
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A07119 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7119
 
SPONSOR: Gunther
  TITLE OF BILL: An act to amend the public health law, in relation to establishing stan- dard nursing home staffing levels   PURPOSE: To establish appropriate and safe staffing standards for nurses in nurs- ing homes.   SUMMARY OF PROVISIONS: Section one directs the Commissioner of Health (COH) to establish regu- lations for standards related to nursing home minimum staffing levels with the goal of promoting the highest possible health and wellbeing of residents in nursing homes. Compliance would be determined on a quarter- ly basis using existing staffing documentation required by the federal government. The COH would be directed to establish regulations on civil penalties for noncompliance. DOH would have to consider mitigating factors such as disasters and emergencies, as well as frequency and nature of non-compliance, and labor supply shortages when issuing penal- ties. At a minimum, nursing home staffing standards would have to include 3.5 hours of nursing care per resident per day. Of this 3.5 hours at least 2.2 would need to be provided by nursing assistants and at least 1.1 would need to be provided by licensed practical nurses (LPNs) or registered nurses (RNs). Section 2 establishes a severability clause. Section 3 establishes an immediate effective date.   JUSTIFICATION: The recent COVID-19 outbreak has brought attention to the level of care being provided to residents in nursing homes, but the truth is many residents in these facilities have not been receiving a sufficient level of services, needed for them to thrive, for years. This legislation would address this long overdue issue by enhancing staffing in nursing homes. It would establish a baseline level of care for every resident in a nursing home as well as a mechanism for enforcement of these stand- ards. This language will ensure that residents of nursing homes are receiving a minimum level of care necessary to help them lead happier and healthier lives. In addition to residents, it is also important to consider the staff providing the care. Many nurses in nursing homes are overworked and underpaid for the services they provide. This bill will also help to support this critical nursing workforce. It will require nursing homes to have their staff focus on the care and services their staff were trained to provide and by improving the quality and health of residents will foster a better working environment for nurses in these facilities.   LEGISLATIVE HISTORY: 2019-20: A2954 reported to Ways & Means/S1032 referred to Health 2017-18: A1532 referred to Codes/S3330 referred to Health 2015-16: A8580A passed Assembly/S782 referred to Health 1013-14: A6571 reported to Ways & Means/S3691A referred to Health 2011-12: A921 reported to Ways & Means/S4553 reported to Finance 2009-10: A11015 held in Ways & Means/57974 referred to Health   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately
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A07119 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7119
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 22, 2021
                                       ___________
 
        Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
          tee on Health
 
        AN ACT to amend the public health law, in relation to establishing stan-
          dard nursing home staffing levels
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  public health law is amended by adding a new section
     2  2895-b to read as follows:
     3    § 2895-b. Nursing home staffing levels. 1.  Definitions.  As  used  in
     4  this section, the following terms shall have the following meanings:
     5    (a)  "Certified  nurse  aide" means any person included in the nursing
     6  home nurse  aide  registry  pursuant  to  section  twenty-eight  hundred
     7  three-j of this chapter.
     8    (b) "Licensed nurse" means a registered professional nurse or licensed
     9  practical  nurse licensed pursuant to article one hundred thirty-nine of
    10  the education law.
    11    (c) "Staffing hours" means the hours reported by a nursing home to the
    12  federal Centers for Medicare and Medicaid Services through  the  payroll
    13  based journal for long-term care facilities.
    14    (d)  "Nurse  aides" means any person who is included in the nurse aide
    15  hour component of the payroll based journal for long-term  care  facili-
    16  ties but has not yet been certified as a certified nurse aide.
    17    2.  Staffing  standards.  (a)  The  commissioner shall, by regulation,
    18  establish staffing standards for nursing home minimum staffing levels to
    19  meet applicable standards of service and care and to provide services to
    20  attain or maintain the highest practicable physical, mental, and psycho-
    21  social well-being of each resident of the facility. Compliance shall  be
    22  determined  quarterly  by  comparing  the daily average of the number of
    23  hours provided per resident, per day,  using  the  federal  Centers  for
    24  Medicare  and Medicaid Services payroll based journal and the facility's
    25  average daily census on a daily basis.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11046-03-1

        A. 7119                             2
 
     1    (b) The commissioner shall establish, by regulation,  civil  penalties
     2  for  facilities  out  of  compliance  with minimum staffing levels. Such
     3  regulations shall include a range of penalties to account for mitigating
     4  factors which shall include:
     5    (i)  extraordinary  circumstances  facing the facility, including, but
     6  not limited to, whether the facility  has  suffered  through  a  natural
     7  disaster  or  other  catastrophic event, an officially declared national
     8  emergency, or state or municipal emergency declared pursuant to  article
     9  two-B of the executive law, which has been initially declared subsequent
    10  to  the  effective  date  of  this  section, or other such conditions or
    11  unforeseen circumstances as determined by the commissioner;
    12    (ii) the frequency and nature of non-compliance; and
    13    (iii) the existence of an acute labor supply shortage within a partic-
    14  ular region.  When determining if there is an acute labor supply  short-
    15  age  within a specific region in a specific quarter, or a shorter period
    16  of time as determined by the commissioner, the commissioner  shall  take
    17  into  consideration  the  following  factors:  regional  labor supply of
    18  available certified nurse aides, licensed practical  nurses  and  regis-
    19  tered  nurses;  regional pay rates for the relevant titles as determined
    20  by the federal department of labor,  bureau  of  labor  statistics;  and
    21  evidence that the facility attempted to procure sufficient staffing.
    22    (c) At least thirty days before any action is taken by the commission-
    23  er  under paragraph (b) of this subdivision, the commissioner shall post
    24  the assessed penalties, and any mitigating factors that were  considered
    25  in assessing the penalty on the department's website.
    26    (d) In determining whether a nursing home has violated its obligations
    27  under this section, it shall not be a defense that such nursing home was
    28  unable  to secure sufficient staff if the lack of staffing was foreseea-
    29  ble and could be prudently planned for,  or  involved  routine  staffing
    30  needs  that  arose  due  to typical staffing patterns, typical levels of
    31  absenteeism, or time off typically approved by the  employer  for  vaca-
    32  tion, holidays, sick leave, and personal leave.
    33    (e)  A  civil  penalty  shall  not be imposed under this section until
    34  after April first, two thousand twenty-two;
    35    (f) Every nursing home shall:
    36    (i) comply with the staffing standards under this section; and
    37    (ii) employ sufficient staffing levels to meet applicable standards of
    38  service and care and to provide service and care and to provide services
    39  to attain or maintain the  highest  practicable  physical,  mental,  and
    40  psychosocial well-being of each resident of the facility.
    41    (g)  Staffing standards established under this subdivision shall, at a
    42  minimum, be the staffing standards established under  subdivision  three
    43  of this section.
    44    (h)  The  minimum  staffing  standard  includes  the  hours  which are
    45  required to be reported by a nursing home to  the  federal  Centers  for
    46  Medicare  and  Medicaid  Services  through the payroll based journal for
    47  long-term care for certified nursing assistants and licensed nurses.  In
    48  determining  compliance  with the staffing standards under this subdivi-
    49  sion, an individual shall not be counted while performing administrative
    50  services as defined in the payroll  based  journal  for  long-term  care
    51  facilities.
    52    3. Statutory standard. (a) Beginning January first, two thousand twen-
    53  ty-two  every  nursing  home shall maintain daily average staffing hours
    54  equal to 3.5 hours of care per resident per day  by  a  certified  nurse
    55  aide,  a  licensed  nurse or a nurse aide; provided that out of such 3.5
    56  hours, no less than 2.2 hours of care per  resident  per  day  shall  be

        A. 7119                             3

     1  provided by a certified nurse aide or a nurse aide, and no less than 1.1
     2  hours  of  care  per  resident  per  day shall be provided by a licensed
     3  nurse.
     4    (b)  Beginning January first, two thousand twenty-three and thereafter
     5  every nursing home shall maintain daily average staffing hours equal  to
     6  3.5  hours  of  care per resident per day by a certified nurse aide or a
     7  licensed nurse; provided that out of such 3.5 hours, no  less  than  2.2
     8  hours  of  care  per  resident  per day shall be provided by a certified
     9  nurse aide, and no less than 1.1 hours of  care  per  resident  per  day
    10  shall be provided by a licensed nurse.
    11    4. Public disclosure of staffing levels. (a) A nursing home shall post
    12  information  regarding  nurse  staffing that the facility is required to
    13  make available to the public under section twenty-eight  hundred  five-t
    14  of  this chapter. Information under this paragraph shall be displayed in
    15  a form approved by the department and be posted in  a  manner  which  is
    16  visible  and  accessible  to residents, their families and the staff, as
    17  required by the commissioner.
    18    (b) A nursing home shall post a summary of this section,  provided  by
    19  the  department,  in proximity to each posting required by paragraph (a)
    20  of this subdivision.
    21    § 2. If any provision of this act, or any application of any provision
    22  of this act, is held to be invalid, or to  violate  or  be  inconsistent
    23  with  any  federal law or regulation, that shall not affect the validity
    24  or effectiveness of any other provision of this act,  or  of  any  other
    25  application  of  any  provision  of  this act, which can be given effect
    26  without that provision or application; and to that end,  the  provisions
    27  and applications of this act are severable.
    28    § 3. This act shall take effect immediately.
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