BREAKING NEWS: SAFE STAFFING BILLS FOR HOSPITALS & NURSING HOMES PASS SENATE & ASSEMBLY, PENDING DELIVERY TO GOVERNOR

Safe Staffing Bill for General Hospitals

On Tuesday, May 4, 2021, the Senate and Assembly overwhelmingly passed S1168-A (Rivera)/A108-B (Gunther), to achieve policy goals of promoting evidence-based nurse staffing standards and increasing transparency of health care data and decision making based on the data. The
legislation requires every general hospital to create a clinical staffing committee made up of registered nurses, licensed practical nurses, ancillary staff members providing direct patient care, and hospital administrators by January 1, 2022. The committee will be responsible for developing and overseeing the implementation of a clinical staffing plan that will include specific guidelines or ratios, matrices, or grids indicating how many patients are assigned to each nurse and the number of ancillary staff in each unit. The plans must be submitted by July 1 each year, the first on due on July 1, 2023, and must be posted in a publicly conspicuous area and on the DOH hospital profile website by July 31 annually.

Other provisions:

  • Annual clinical staffing plans must be developed and adopted by consensus of the clinical staffing committee. For the purpose of determining consensus, the management members have one vote and employee members have one vote, regardless of how many individual members comprise administration or employee. If clinical staffing committees do not reach consensus on the plan or any parts of it, the legislation authorizes the chief executive officer of the general hospital to use discretion to adopt a plan or partial plan with written explanation of areas where there is disagreement.

  • The hospital must post the staffing plan in a publicly conspicuous area of each patient care unit.

  • Anti-retaliation provisions prohibit general hospitals from retaliating or engaging in any form of

    intimidation.

  • DOH is tasked with investigating possible violations following receipt of a complaint with supporting

    evidence of failure to: form or establish a clinical staffing committee, comply with a clinical staffing plan, adopt all or part of a plan that is approved by consensus, conduct semiannual review of the plan, and submit the plan to DOH on an annual basis. DOH is also required to investigate complaints that are initially submitted to a hospital’s clinical staffing committees but are unresolved, related to alleged noncompliance with any aspect of the clinical staffing plan requirements.

  • Further, DOH must initiate an investigation if it determines that a pattern of failure exists to resolve complaints that are submitted to the clinical staffing committee or to reach consensus on adopting all or parts of a clinical staffing plan.

• In any investigation, DOH must consider whether any unforeseeable emergency circumstances contributed to a hospital’s failure to comply. The legislation defines “unforeseeable emergency circumstances” as:

o a declared national, state, or municipal emergency,
o when a hospital’s disaster plan has been activated, or
o any unforseen disaster or catastrophic event that immediately affects or increases the need

for health care services.

  • The legislation prohibits as a defense, a hospital’s inability to secure sufficient staffing if the lack of staffing was foreseeable and could be prudently planned for.

  • DOH is required to submit an annual report to the Governor, Senate Temporary President and Majority Leader, Speaker of Assembly, and the Chairs of Senate and Assembly Health Committees outlining the number of complaints submitted to the Department, disposition of complaints, number of investigations conducted and associated costs for complaint investigations, if any. Before this report is submitted by DOH to the aforementioned parties, DOH is required to convene a stakeholder work group that consists of hospital associations, unions representing nurses and other ancillary members of team to review the report.

  • DOH is required to promulgate regulations addressing reporting requirements to assure data is submitted in a uniform manner via a form/format, which shall take effect no later than December 31, 2022. The goal of the regulations is to “...allow patients and the public to clearly understand and compare staffing patterns and actual levels of staffing across facilities.”

  • An advisory commission will be created consisting of nine members consisting of three members in nursing practice, three representatives of unions representing nurses and three members representing general hospitals. The Governor, Assembly Speaker, and Temporary President of the Senate will appoint one member for each of the three categories. The Advisory Commission will evaluate the staffing levels and other quality metrics related to nurse staffing in hospitals. The Advisory Commission will send a report to the Legislature and make a report available to the public on any further legislative action to improve working conditions and quality of care in hospitals by October 31, 2024 and every three years thereafter.

The bill passed the Assembly by a vote of 144-5. The bill passed the Senate by a vote of 63-0.

Safe Staffing Bill for Nursing Homes

On Tuesday, May 4, 2021 the Senate and Assembly passed S6346 (Rivera)/A7119 (Gunther), which requires the Commissioner of Health to promulgate regulations establishing staffing standards for nursing home minimum staffing levels and impose civil penalties for nursing homes that fail to adhere to the minimum standards.

These minimum standards, which take effect January 1, 2022, require every nursing home to maintain daily staffing hours equal to 3.5 hours of care per resident per day by a certified nurse aide (CNA), licensed practical nurse, or registered nurse. Out of the 3.5 hours:

The regulations to be promulgated “...establishing minimum staffing levels to meet applicable standards of service and care to provide services to attain or maintain the highest practicable physical, mental, psychosocial well-being each resident of the facility.” The legislation states, “Compliance shall be determined quarterly by comparing the daily average of the number of hours provided per resident, per day, using the federal Centers for Medicare and Medicaid Services payroll based journal and the facility's average daily census on a daily basis.” An individual performing administrative services as reported in the CMS payroll-based journal for long-term care facilities shall not be counted in minimum staffing standard.

  • at least 2.2 hours of care per resident per day being provided by a CNA and;

  • at least 1.1 hours of care per resident per day provided by a licensed nurse.

The regulations to be promulgated “...establishing minimum staffing levels to meet applicable standards of service and care to provide services to attain or maintain the highest practicable physical, mental, psychosocial well-being each resident of the facility.” The legislation states, “Compliance shall be determined quarterly by comparing the daily average of the number of hours provided per resident, per day, using the federal Centers for Medicare and Medicaid Services payroll based journal and the facility's average daily census on a daily basis.” An individual performing administrative services as reported in the CMS payroll-based journal for long-term care facilities shall not be counted in minimum staffing standard.

The legislation prohibits as a defense, a nursing home’s inability to secure sufficient staffing if the staffing shortage was foreseeable and could be prudently planned for. Civil penalties cannot be imposed until after April 1, 2022.

Key Definitions:

  • "Certified nurse aide" means any person included in the nursing home nurse aide registry pursuant to section twenty-eight hundred three-j of this chapter.

  • "Licensed nurse" means a registered professional nurse or licensed practical nurse licensed pursuant to article one hundred thirty-nine of the education law.

  • "Staffing hours" means the hours reported by a nursing home to the federal Centers for Medicare and Medicaid Services through the payroll-based journal for long-term care facilities.

  • "Nurse aides" means any person who is included in the nurse aide hour component of the payroll- based journal for long-term care facilities but has not yet been certified as a certified nurse aide.

Note the 3.5 hours of care is only related to nursing staff and does not include others such as occupational therapists, respiratory therapists, physical therapists, etc. The minimum staffing standard would apply to all 600+ nursing homes in New York State.

There is also a requirement of public disclosure of staffing levels, which includes posting the form to be created by DOH with such information in a manner that is visible and accessible to residents, their families and staff.

The bill passed the Assembly by a vote of 126-24. The bill passed the Senate by a vote of 54-9.

CHC will monitor delivery of these bills to the Governor and action taken. Stay tuned!

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