STATE OF NEW YORK
________________________________________________________________________
8110
IN SENATE
June 13, 2016
___________
Introduced by Sen. LAVALLE -- (at request of the Governor) -- read twice
and ordered printed, and when printed to be committed to the Committee
on Rules
AN ACT to amend the education law and the public health law, in relation
to authorizing certain advanced home health aides to perform certain
advanced tasks; and providing for the repeal of such provisions upon
expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 6908 of the education law is amended by adding a
2 new subdivision 2 to read as follows:
3 2. This article shall not be construed as prohibiting advanced tasks
4 provided by an advanced home health aide in accordance with regulations
5 developed by the commissioner, in consultation with the commissioner of
6 health. At a minimum, such regulations shall:
7 a. specify the advanced tasks that may be performed by advanced home
8 health aides pursuant to this subdivision. Such tasks shall include the
9 administration of medications which are routine and prefilled or other-
10 wise packaged in a manner that promotes relative ease of administration,
11 provided that administration of medications by injection, sterile proce-
12 dures, and central line maintenance shall be prohibited. Provided,
13 however, such prohibition shall not apply to injections of insulin or
14 other injections for diabetes care, to injections of low molecular
15 weight heparin, and to pre-filled auto-injections of naloxone and
16 epinephrine for emergency purposes, and provided, further, that entities
17 employing advanced home health aides pursuant to this subdivision shall
18 establish a systematic approach to address drug diversion;
19 b. provide that advanced tasks performed by advanced home health aides
20 may be performed only under the direct supervision of a registered
21 professional nurse licensed in New York state, as set forth in this
22 subdivision and subdivision eight of section sixty-nine hundred nine of
23 this article, where such nurse is employed by a home care services agen-
24 cy licensed or certified pursuant to article thirty-six of the public
25 health law, a hospice program certified pursuant to article forty of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12075-01-6
S. 8110 2
1 public health law, or an enhanced assisted living residence licensed
2 pursuant to article seven of the social services law and certified
3 pursuant to article forty-six-B of the public health law. Such nursing
4 supervision shall:
5 (i) include training and periodic assessment of the performance of
6 advanced tasks;
7 (ii) be determined by the registered professional nurse responsible
8 for supervising such advanced tasks based upon the complexity of such
9 advanced tasks, the skill and experience of the advanced home health
10 aide, and the health status of the individual for whom such advanced
11 tasks are being performed;
12 (iii) include a comprehensive initial and thereafter regular and ongo-
13 ing assessment of the individual's needs;
14 (iv) include as a requirement that the supervising registered profes-
15 sional nurse shall visit individuals receiving services for the purpose
16 of supervising the services provided by advanced home health aides no
17 less than once every two weeks and include as a requirement that a
18 registered professional nurse shall be available by telephone to the
19 advanced home health aide twenty-four hours a day, seven days a week,
20 provided that a registered professional nurse shall be available to
21 visit an individual receiving services as necessary to protect the
22 health and safety of such individual; and
23 (v) as shall be specified by the commissioner, be provided in a manner
24 that takes into account individual care needs, case mix complexity and
25 geographic considerations and provide that the number of individuals
26 served by a supervising registered professional nurse is reasonable and
27 prudent.
28 c. establish a process by which a registered professional nurse may
29 assign advanced tasks to an advanced home health aide. Such process
30 shall include, but not be limited to:
31 (i) allowing assignment of advanced tasks to an advanced home health
32 aide only where such advanced home health aide has demonstrated to the
33 satisfaction of the supervising registered professional nurse competency
34 in every advanced task that such advanced home health aide is authorized
35 to perform, a willingness to perform such advanced tasks, and the abili-
36 ty to effectively and efficiently communicate with the individual
37 receiving services and understand such individual's needs;
38 (ii) prohibiting assignment of advanced tasks to an advanced home
39 health aide if the individual receiving services declines to be served
40 by an advanced home health aide;
41 (iii) authorizing the supervising registered professional nurse to
42 revoke any assigned advanced task from an advanced home health aide for
43 any reason; and
44 (iv) authorizing multiple registered professional nurses to jointly
45 agree to assign advanced tasks to an advanced home health aide, provided
46 further that only one registered professional nurse shall be required to
47 determine if the advanced home health aide has demonstrated competency
48 in the advanced task to be performed;
49 d. provide that advanced tasks may be performed only in accordance
50 with and pursuant to an authorized health practitioner's ordered care;
51 e. provide that only a certified home health aide may perform advanced
52 tasks as an advanced home health aide when such aide has:
53 (i) at least one year of experience providing either home health or
54 personal care services, or a combination of the same;
S. 8110 3
1 (ii) completed the requisite training and demonstrated competencies of
2 an advanced home health aide as determined by the commissioner in
3 consultation with the commissioner of health;
4 (iii) successfully completed competency examinations satisfactory to
5 the commissioner in consultation with the commissioner of health; and
6 (iv) meets other appropriate qualifications as determined by the
7 commissioner in consultation with the commissioner of health;
8 f. provide that only an individual who is listed in the home care
9 services registry maintained by the department of health pursuant to
10 section thirty-six hundred thirteen of the public health law as having
11 satisfied all applicable training requirements and having passed the
12 applicable competency examinations and who meets other requirements as
13 set forth in regulations issued by the commissioner of health pursuant
14 to subdivision seventeen of section thirty-six hundred two of the public
15 health law may perform advanced tasks pursuant to this subdivision and
16 may hold himself or herself out as an advanced home health aide;
17 g. establish minimum standards of training for the performance of
18 advanced tasks by advanced home health aides, including didactic train-
19 ing, clinical training, and a supervised clinical practicum with stand-
20 ards set forth by the commissioner of health;
21 h. provide that advanced home health aides shall receive case-specific
22 training on the advanced tasks to be assigned by the supervising nurse,
23 provided that additional training shall take place whenever additional
24 advanced tasks are assigned;
25 i. prohibit an advanced home health aide from holding himself or
26 herself out, or accepting employment as, a person licensed to practice
27 nursing under the provisions of this article;
28 j. provide that an advanced home health aide is not required nor
29 permitted to assess the medication or medical needs of an individual;
30 k. provide that an advanced home health aide shall not be authorized
31 to perform any advanced tasks or activities pursuant to this subdivision
32 that are outside the scope of practice of a licensed practical nurse or
33 any advanced tasks that have not been appropriately assigned by the
34 supervising registered professional nurse;
35 l. provide that an advanced home health aide shall document all
36 advanced tasks provided to an individual, including medication adminis-
37 tration to each individual through the use of a medication adminis-
38 tration record; and
39 m. provide that the supervising registered professional nurse shall
40 retain the discretion to decide whether to assign advanced tasks to
41 advanced home health aides under this program and shall not be subject
42 to coercion, retaliation, or the threat of retaliation; in developing
43 such regulations, the commissioner shall take into account the recommen-
44 dations of a workgroup of stakeholders convened by the commissioner of
45 health in consultation with the commissioner for the purpose of provid-
46 ing guidance on the foregoing.
47 § 2. Section 6909 of the education law is amended by adding a new
48 subdivision 8 to read as follows:
49 8. A registered professional nurse, while working for a home care
50 services agency licensed or certified pursuant to article thirty-six of
51 the public health law, a hospice program certified pursuant to article
52 forty of the public health law, or an enhanced assisted living residence
53 licensed pursuant to article seven of the social services law and certi-
54 fied pursuant to article forty-six-B of the public health law may, in
55 accordance with this subdivision, assign advanced home health aides to
56 perform advanced tasks for individuals pursuant to the provisions of
S. 8110 4
1 subdivision two of section sixty-nine hundred eight of this article and
2 supervise advanced home health aides who perform assigned advanced
3 tasks.
4 (a) Prior to assigning or modifying an assignment to perform an
5 advanced task, the registered professional nurse shall:
6 (i) complete a nursing assessment to ascertain the client's current
7 health status and care needs; and
8 (ii) provide to the advanced home health aide written, individual-spe-
9 cific instructions for performing the advanced task and criteria for
10 identifying, reporting and responding to problems or complications.
11 (b) The registered professional nurse shall not assign an advanced
12 task unless:
13 (i) the advanced task to be assigned is consistent with an authorized
14 health practitioner's ordered care;
15 (ii) the registered professional nurse provides case specific training
16 to the advanced home health aide and personally verifies that the
17 advanced home health aide can safely and competently perform the
18 advanced task;
19 (iii) the registered professional nurse determines that the advanced
20 home health aide is willing to perform such advanced task; and
21 (iv) the registered professional nurse determines that the advanced
22 home health aide is able to effectively and efficiently communicate with
23 the individual receiving services and understand such individual's
24 needs.
25 (c) The supervising registered professional nurse shall:
26 (i) visit individuals receiving services for the purpose of supervis-
27 ing the services provided by advanced home health aides no less than
28 once every two weeks; and
29 (ii) conduct regular and ongoing assessment of the individual's needs.
30 § 3. Section 6906 of the education law is amended by adding a new
31 subdivision 9 to read as follows:
32 (9) In conjunction with and as a condition of each triennial registra-
33 tion, the department shall ask and a licensed practical nurse shall
34 indicate whether the licensed practical nurse is or has previously been
35 authorized as an advanced home health aide pursuant to subdivision two
36 of section sixty-nine hundred eight of this article. The department
37 shall provide responses to the department of health and the department
38 of health shall include such information in reports related to advanced
39 home health aides.
40 § 4. Section 206 of the public health law is amended by adding a new
41 subdivision 30 to read as follows:
42 30. The commissioner shall notify the commissioner of education in any
43 instance in which a registered professional nurse engages in improper
44 behavior while supervising an advanced home health aide pursuant to
45 subdivision two of section sixty-nine hundred eight of the education
46 law.
47 § 5. Section 3602 of the public health law is amended by adding a new
48 subdivision 17 to read as follows:
49 17. "Advanced home health aides" means home health aides who are
50 authorized to perform advanced tasks as delineated in subdivision two of
51 section sixty-nine hundred eight of the education law and regulations
52 issued by the commissioner of education relating thereto. The commis-
53 sioner shall promulgate regulations regarding such aides, which shall
54 include a process for the limitation or revocation of the advanced home
55 health aide's authorization to perform advanced tasks in appropriate
56 cases.
S. 8110 5
1 § 6. Paragraph (a) of subdivision 1 of section 3613 of the public
2 health law, as added by chapter 594 of the laws of 2008, is amended to
3 read as follows:
4 (a) "Home care services entity" means a home care services agency or
5 other entity providing home care services subject to this article or
6 exempt under section thirty-six hundred nineteen of this article, a
7 hospice program certified pursuant to article forty of this chapter
8 providing routine care at home under the hospice benefit, or an enhanced
9 assisted living residence licensed under article seven of the social
10 services law and certified under article forty-six-B of this chapter
11 providing enhanced assisted living services.
12 § 7. Subdivision 9 of section 3613 of the public health law is renum-
13 bered subdivision 10 and a new subdivision 9 is added to read as
14 follows:
15 9. The department shall indicate within the home care services worker
16 registry when a home health aide has satisfied all applicable training
17 and recertification requirements and has passed the applicable competen-
18 cy examinations necessary to perform advanced tasks pursuant to subdivi-
19 sion two of section sixty-nine hundred eight of the education law and
20 regulations issued thereto. Any limitation or revocation of the advanced
21 home health aide's authorization also shall be indicated on the regis-
22 try.
23 § 8. Subdivision 6 of section 2899 of the public health law, as
24 amended by chapter 94 of the laws of 2014, is amended to read as
25 follows:
26 6. "Provider" shall mean any residential health care facility licensed
27 under article twenty-eight of this chapter; or any certified home health
28 agency, licensed home care services agency or long term home health care
29 program certified under article thirty-six of this chapter; any hospice
30 program certified pursuant to article forty of this chapter; or any
31 adult home, enriched housing program or residence for adults licensed
32 under article seven of the social services law.
33 § 9. Paragraph (a) of subdivision 9 of section 2899-a of the public
34 health law, as amended by section 23 of part A of chapter 60 of the laws
35 of 2014, is amended to read as follows:
36 (a) In the event that funds are appropriated in any given fiscal year
37 for the reimbursement for the costs of providing such criminal history
38 information, reimbursement shall be made available in an equitable and
39 direct manner for the projected cost of the fee established pursuant to
40 law by the division of criminal justice services for processing a crimi-
41 nal history information check, the fee imposed by the federal bureau of
42 investigation for a national criminal history check, and costs associ-
43 ated with obtaining the fingerprints to all providers licensed, but not
44 certified under article thirty-six of this chapter, providers certified
45 under article forty of this chapter, and all adult care facilities
46 licensed under article seven of the social services law, including those
47 that are subject to this article and are unable to access direct
48 reimbursement from state and/or federal funded health programs.
49 § 10. On or before September 1, 2016, the commissioner of health
50 shall, in consultation with the commissioner of education, issue a
51 report to the governor and the chairs of the senate and assembly health
52 and higher education committees setting forth the recommendations of the
53 workgroup convened by the commissioner of health for the purpose of
54 providing guidance on the performance of advanced tasks which may be
55 performed by advanced home health aides.
S. 8110 6
1 § 11. On or before October 1, 2022, the commissioner of health shall,
2 in consultation with the commissioner of education, issue a report on
3 the implementation of advanced home health aides in the state. Such
4 report shall include the number of advanced home health aides authorized
5 pursuant to this act; the number of home health aides and personal care
6 aides that became authorized to perform advanced tasks; the number of
7 advanced home health aides that became registered as licensed practical
8 nurses; the types of advanced tasks that advanced home health aides are
9 performing; the number of complaints pertaining to services provided by
10 advanced home health aides that were reported to the department of
11 health; and the number of advanced home health aides who had their
12 authorization limited or revoked. Such report shall provide recommenda-
13 tions to the governor and the chairs of the senate and assembly health
14 and higher education committees regarding the implementation of home
15 health aides pursuant to this act, and any recommendations related ther-
16 eto.
17 § 12. This act shall take effect immediately; provided that:
18 a. sections one and three of this act shall take effect eighteen
19 months after this act shall have become a law. Effective immediately,
20 the commissioner of education is authorized to adopt or amend regu-
21 lations and take such other actions as are necessary to implement the
22 provisions of sections one and two of this act on or before such effec-
23 tive date; provided, further, that no advanced tasks shall be performed
24 pursuant to the provisions of subdivision two of section 6908 of the
25 education law, as added by section one of this act, on or before such
26 effective date; provided further, that no advanced tasks shall be
27 performed pursuant to such provisions until such regulations are adopted
28 and except in conformance with such regulations including in conformance
29 with the provisions of such regulations related to the completion of
30 advanced home health aide training and the satisfaction of competency
31 examination requirements; and provided, further, that sections eight and
32 nine of this act shall take effect April 1, 2018 and shall apply only to
33 prospective employees.
34 b. this act shall expire and be deemed repealed March 31, 2023.
