NY Pub Health L § 2805-T (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2805-T - Clinical Staffing Committees and Disclosure of Nursing Quality Indicators.

§  2805-t.  Clinical  staffing  committees  and  disclosure of nursing quality indicators. 1. Legislative intent. The legislature hereby  finds and declares:  (a)  Research  demonstrates  that  nurses  play  a  critical  role  in improving patient safety and quality of care;  (b) Appropriate staffing  of  general  hospital  personnel,  including registered  nurses  available  for  patient  care,  assists  in reducing errors, complications and adverse patient care  events,  improves  staff safety and satisfaction, and reduces incidences of workplace injuries;  (c)  Health  care  professional, technical, and support staff comprise vital components of the patient care  team,  bringing  their  particular skills and services to ensuring quality patient care;  (d)  Ensuring  sufficient  staffing  of  general  hospital  personnel, including registered nurses, is an  urgent  public  policy  priority  in order  to  protect  patients and support greater retention of registered nurses and safer working conditions; and  (e) It is the public policy of the  state  to  promote  evidence-based nurse  staffing  standards and increase transparency of health care data and decision making based on the data.   2. Clinical staffing committee. (a)  Each  general  hospital  licensed pursuant  to  this  article  shall  establish  and  maintain  a clinical staffing committee, either by creating a new committee or assigning  the functions  of  the clinical staffing committee to an existing committee, no later than January first, two thousand twenty-two.  (b) Where a collective bargaining agreement provides  for  a  staffing committee,  the  required  functions  of the clinical staffing committee established pursuant to this section shall  be  incorporated  into  that committee.  Any  staffing  or  non-staffing  committees established by a collective  bargaining  agreement,  shall  continue   to   function   in accordance  with  the  terms of the agreement, and the clinical staffing committee established by this  section  shall  not  limit  or  otherwise supplant the collective bargaining agreement.  (c)  At  least  one-half  of  the  members  of  the  clinical staffing committee shall be registered nurses,  licensed  practical  nurses,  and ancillary   members   of  the  frontline  team  currently  providing  or supporting direct patient care and up to one-half of the  members  shall be selected by the general hospital administration and shall include but not  be  limited  to  the  chief  financial  officer,  the chief nursing officer, and patient care unit directors or managers or their designees. The selection of the registered nurses, licensed practical  nurses,  and ancillary  frontline team members of the committee shall be according to their respective collective bargaining agreements if  there  is  one  in effect at the general hospital for their bargaining unit. If there is no applicable  collective bargaining agreement, the members of the clinical staffing committee who are registered nurses, licensed practical nurses, and ancillary members providing direct patient care shall be selected by their peers. Ancillary members of the frontline team  on  the  committee shall include but are not limited to patient care technicians, certified nursing  assistants,  other non-licensed staff assisting with nursing or clerical tasks, and unit clerks.   3. Employee participation.  Participation  in  the  clinical  staffing committee by a general hospital employee shall be on scheduled work time and  compensated  at  the  appropriate  rate  of  pay. Clinical staffing committee members shall be fully  relieved  of  all  other  work  duties during meetings of the committee and shall not have work duties added or displaced   to   other   times   as   a   result   of   their  committee responsibilities.    4. Primary responsibilities. Primary responsibilities of the  clinical staffing committee shall include the following functions:  (a)  Development and oversight of implementation of an annual clinical staffing  plan.  The  clinical  staffing  plan  shall  include  specific staffing for each patient care unit and work shift and shall be based on the  needs of patients. Staffing plans shall include specific guidelines or ratios, matrices, or grids indicating how many patients are  assigned to each registered nurse and the number of nurses and ancillary staff to be  present  on  each  unit  and  shift and shall be used as the primary component of the general hospital staffing budget.  (b) Factors to be considered and incorporated in  the  development  of the plan shall include, but are not limited to:  (i)  Census,  including  total numbers of patients on the unit on each shift  and  activity  such  as  patient  discharges,   admissions,   and transfers;  (ii)  Measures  of  acuity and intensity of all patients and nature of the care to be delivered on each unit and shift;  (iii) Skill mix;  (iv)  The   availability,   level   of   experience,   and   specialty certification  or  training of nursing personnel providing patient care, including charge nurses, on each unit and shift;  (v) The need for specialized or intensive equipment;  (vi)  The  architecture  and  geography  of  the  patient  care  unit, including  but  not  limited  to  placement  of patient rooms, treatment areas, nursing stations, medication preparation areas, and equipment;  (vii) Mechanisms and procedures  to  provide  for  one-to-one  patient observation,  when needed, for patients on psychiatric or other units as appropriate;  (viii) Other special characteristics of the unit or community  patient population,  including age, cultural and linguistic diversity and needs, functional ability, communication skills, and other relevant  social  or socio-economic factors;  (ix)  Measures  to  increase  worker  and  patient safety, which could include measures to improve patient throughput;  (x) Staffing guidelines adopted or published by other states or  local jurisdictions,  national  nursing  professional  associations, specialty nursing organizations, and other health professional organizations;  (xi) Availability of other personnel supporting  nursing  services  on the unit;  (xii)  Waiver  of  plan  requirements  in  the  case  of unforeseeable emergency circumstances as  defined  in  subdivision  fourteen  of  this section;  (xiii)  Coverage  to  enable  registered  nurses,  licensed  practical nurses, and ancillary staff to take meal and rest breaks,  planned  time off,  and unplanned absences that are reasonably foreseeable as required by law or the terms of an applicable collective bargaining agreement, if any, between the general hospital and a representative of the nursing or ancillary staff;  (xiv)  The  nursing  quality  indicators  required  under  subdivision seventeen of this section;  (xv) General hospital finances and resources; and  (xvi)   Provisions   for   limited   short-term  adjustments  made  by appropriate  general  hospital   personnel   overseeing   patient   care operations  to  the  staffing  levels required by the plan, necessary to account for unexpected changes  in  circumstances  that  are  to  be  of limited duration.  (c)  Semiannual  review of the staffing plan against patient needs and known  evidence-based  staffing  information,  including   the   nursing sensitive quality indicators collected by the general hospital.  (d) Review, assessment, and response to complaints regarding potential violations  of  the adopted staffing plan, staffing variations, or other concerns regarding the implementation of the staffing  plan  and  within the purview of the committee.   5.  Compliance provisions. (a) The clinical staffing plan shall comply with all federal and state laws and regulations and shall  not  diminish other  standards  contained  in state or federal law and regulations, or the terms of an applicable collective bargaining agreement, if any.  (b) The clinical staffing plan shall comply with applicable  laws  and regulations, including, but not limited to:  (i)  Regulations  made  by the department on burn unit staffing, liver transplant staffing, and operating room circulating nurse staffing;  (ii) Staffing  regulations  to  be  promulgated  by  the  commissioner relating  to staffing in intensive care and critical care units no later than January first, two  thousand  twenty-two.  Such  regulations  shall consider  the  factors set forth in paragraph (b) of subdivision four of this section, standards in place in neighboring states,  and  a  minimum standard of twelve hours of registered nurse care per patient per day;  (iii) Such other staffing standards or regulations as are currently in effect  or  may hereafter be established by the department or enacted by the legislature; and  (iv) The provisions of section one hundred sixty-seven  of  the  labor law and any related regulations.  (c)  The  clinical staffing plan shall comply with and incorporate any minimum staffing  levels  provided  for  in  any  applicable  collective bargaining  agreement,  including  but  not  limited to nurse-to-patient ratios, caregiver-to-patient ratios, staffing grids, staffing  matrices, or other staffing provisions.   6.  Process  for adoption of clinical staffing plans. (a) The clinical staffing committee shall produce the general hospital's annual  clinical staffing plan by July first of each year.  (b)  Clinical  staffing  plans  shall  be  developed  and  adopted  by consensus of the  clinical  staffing  committee.  For  the  purposes  of determining  whether there is a consensus, the management members of the committee shall have one vote and the employee members of the  committee shall  have  one vote, regardless of the actual number of members of the committee.  Each side may determine its own method of casting  its  vote to adopt all or part of the clinical staffing plan.  (c)  The  general hospital shall adopt any clinical staffing plan that is wholly or partially  recommended  by  a  consensus  of  the  clinical staffing committee. If there is no consensus on the recommended staffing plan  or  any  of  its parts, the chief executive officer of the general hospital shall use the officer's discretion to adopt a plan  or  partial plan  for which there is no consensus. In this case, the chief executive officer shall provide a written  explanation  of  the  elements  of  the clinical  staffing  plan  that  the  committee  was  unable to agree on, including the final written proposals from the  two  parties  and  their rationales. In no event may a chief executive officer fail to include in the  adopted  plan any staffing related terms and conditions of the plan that has previously  been  adopted  through  any  applicable  collective bargaining agreement.  (d)  Each  general  hospital shall adopt and submit its first hospital clinical staffing plan under this section to  the  department  no  later than  July  first,  two thousand twenty-two and annually thereafter. The plan submitted to the department shall, where  applicable,  include  the  written  explanation  from  the  chief  executive  officer  and  written proposals from the two parties regarding elements that the committee did not agree on as required in  paragraph  (c)  of  this  subdivision.  The submitted  clinical  staffing plan shall include data, from at least the previous year, on the frequency and  duration  of  variations  from  the adopted clinical staffing plan, the number of complaints relating to the clinical staffing plan and their disposition, as well as descriptions of unresolved complaints submitted pursuant to paragraph (b) of subdivision seven  of  this  section.  The department shall post the plan as part of each individual general hospital's health profile on the website of  the department  no later than July thirty-first of each year. If the adopted clinical staffing plan is subsequently amended, the amended  plan  shall be  submitted  to the department within thirty days of adoption. Adopted staffing plans shall be amended  to  include  newly  created  units  and existing  units  that  undergo  clinical  or  programmatic  changes that fundamentally alter their character or nature. The department shall post amended staffing plans upon receipt.   7. Implementation of clinical staffing plans.  (a)  Beginning  January first,  two thousand twenty-three, and annually thereafter, each general hospital shall implement the clinical  staffing  plan  adopted  by  July first  of  the  prior  calendar year, and any subsequent amendments, and assign personnel to each patient care unit in accordance with the plan.  (b) A registered nurse, licensed practical nurse, ancillary member  of the  frontline  team, or collective bargaining representative may report to the clinical staffing committee any variations  where  the  personnel assignment  in a patient care unit is not in accordance with the adopted staffing plan and may make a complaint to the  committee  based  on  the variations.  (c)  The  clinical  staffing  committee  shall  develop  a  process to examine, respond to, and track data submitted  under  paragraph  (b)  of this  subdivision.  The clinical staffing committee may by consensus, as described in paragraph (b) of subdivision six of this section, determine a complaint resolved or dismissed. The clinical staffing committee shall also  establish  agreed  upon  rules  and  criteria   to   provide   for confidentiality  of complaints that are in the process of being examined or are found to be unsubstantiated. This subdivision does  not  infringe upon  or limit the rights of any collective bargaining representative of employees, or  of  any  employee  or  group  of  employees  pursuant  to applicable  law,  including  without  limitation any applicable state or federal labor laws.   8. Posting of staffing information. Each general hospital shall  post, in  a  publicly conspicuous area on each patient care unit, the clinical staffing plan for that unit and the actual daily staffing for that shift on that unit as well as the relevant clinical staffing.   9. Retaliation and intimidation prohibited. A general  hospital  shall not retaliate against or engage in any form of intimidation of:  (a)  An  employee  for  performing  any  duties or responsibilities in connection with the clinical staffing committee; or  (b) An  employee,  patient,  or  other  individual  who  notifies  the clinical  staffing  committee  or  the  hospital  administration  of the individual's staffing concerns.   10. Special considerations. Nothing in this  section  is  intended  to create unreasonable burdens on critical access hospitals under 42 U.S.C. Sec.   1395i-4  and  sole  community  hospitals  under  42  U.S.C.  Sec. 1395ww(d)(5)  related  to  the  operation  of  their  clinical  staffing committees.  Critical  access  and  sole community hospitals may develop flexible approaches to accomplish  the  requirements  of  this  section. Clinical  staffing  plans from such entities submitted to the department  shall contain a description of any ways in which the general  hospital's approach to creating the plan differed from the process outlined in this section. This subdivision does not relieve such entities from compliance with   other  provisions  of  this  section  related  to  the  adoption, implementation and adherence  to  an  adopted  clinical  staffing  plan, reporting and disclosure, or other requirements of this section.   11.  Investigations.  (a)  The  department shall investigate potential violations of  this  section  following  receipt  of  a  complaint  with supporting evidence, of failure to:  (i) Form or establish a clinical staffing committee;  (ii)  Comply  with  the  requirements  of  this  section in creating a clinical staffing plan;  (iii) Adopt all or part of a clinical staffing plan that  is  approved by  consensus  of  the  clinical staffing committee and submitted to the department;  (iv) Conduct a semiannual review of a clinical staffing plan; or  (v) Submit to the department a clinical staffing  plan  on  an  annual basis and any updates.  (b)  The  department  shall  initiate  an  investigation of unresolved complaints, that have first been  submitted  to  the  clinical  staffing committee,   regarding  compliance  with  the  clinical  staffing  plan, personnel assignments in a patient care unit or staffing levels, or  any other  requirement  of  the  adopted  clinical  staffing plan, excluding complaints determined by the clinical staffing committee to be  resolved or  dismissed  as  determined  by  consensus  of  the  clinical staffing committee as described in paragraph  (b)  of  subdivision  six  of  this section.  (c)  The  department  shall  initiate an investigation after making an assessment that there is a pattern  of  failure  to  resolve  complaints submitted  to the clinical staffing committee or a pattern of failure to reach consensus on the adoption of all or part of  a  clinical  staffing plan.  In  the  case of a pattern of failure to resolve complaints or to reach consensus on the adoption of all or part of  a  clinical  staffing plan,  the  department  shall determine if the pattern was due to one of the parties routinely refusing to resolve complaints or reach consensus.  (d) Any department investigation of a complaint under this subdivision shall consider whether unforeseeable emergency circumstances as  defined in  subdivision  fourteen  of this section contributed to the failure of the general hospital to comply with this section.  (e) After an investigation conducted under paragraph  (a)  or  (b)  of this  subdivision,  if  the  department determines that there has been a violation, the department shall require the general hospital to submit a corrective plan of action within forty-five days of the presentation  of findings  from  the  department  to  the  hospital.  If  the  department determines after investigation under paragraph (c) of  this  subdivision that  the  general  hospital  representatives  on  the clinical staffing committee were responsible for a pattern of not resolving complaints  or for  a  pattern  of not reaching consensus, the department shall require the  general  hospital  to  submit  a  corrective  action  plan   within forty-five days of the presentation of findings to the general hospital. If  the department finds that the frontline staff representatives on the clinical staffing committee  were  responsible  for  a  pattern  of  not resolving  complaints  or  for  a pattern of not reaching consensus, the department shall not require the general hospital to submit a corrective action plan or impose a civil penalty on the general  hospital  pursuant to subdivision twelve of this section.   12.  Civil  penalties.  In  the event that a general hospital fails to submit or submits but fails to implement a  corrective  action  plan  in  response to a violation or violations found by the department based on a complaint  filed  pursuant  to  paragraph (a), (b) or (c) of subdivision eleven of this section, the department may impose  a  civil  penalty  as authorized by section twelve of this chapter for all violations asserted against  the  general  hospital,  until  the general hospital submits or implements a corrective action plan or takes other  action  directed  by the department.   13. Posting of penalties and related information. The department shall maintain  for  public  inspection,  including  posting  on  the  general hospital profile  on  the  department  website,  records  of  any  civil penalties, administrative actions, or license suspensions or revocations imposed on general hospitals under this section.   14.  Unforeseeable  emergency  circumstances. (a) For purposes of this section, "unforeseeable emergency circumstance" means:  (i) Any officially declared national, state, or municipal emergency;  (ii) When a general hospital disaster plan is activated; or  (iii)  Any  unforeseen  disaster  or  other  catastrophic  event  that immediately affects or increases the need for health care services.  (b)  In  determining  whether  a  general  hospital  has  violated its obligations under this section to comply  with  the  general  hospital's clinical  staffing plan, it shall not be a defense that it was unable to secure sufficient staff if the lack  of  staffing  was  foreseeable  and could  be prudently planned for or involved routine nurse staffing needs that  arose  due  to  typical  staffing  patterns,  typical  levels   of absenteeism,  and  time  off  typically  approved  by  the  employer for vacation, holidays, sick leave, and personal leave.   15. Complaints. Nothing in this section shall be construed to preclude the ability to submit a complaint to  the  department  as  provided  for under  this  chapter.  Nothing  in  this  section  shall be construed as supplanting  other  complaint  mechanisms  established  by   a   general hospital,  including mechanisms designed to aid in compliance with other federal, state or local laws. Nothing in this section shall be construed as limiting or supplanting the rights of employees and their  collective bargaining representatives to fully enforce any and all rights under the terms of a collective bargaining agreement. An employer shall not assert or  attempt  to  assert  a  claim  that  enforcement  of  the collective bargaining agreement is barred or limited  by  any  provisions  of  this section.   16. Annual report. (a) The department shall submit an annual report to the  speaker of the assembly, the temporary president of the senate, and the chairs of the health committees of the assembly and senate  and  the governor  on  or  before December thirty-first of each year. This report shall include the number of complaints submitted to the department,  the disposition of these complaints, the number of investigations conducted, and the associated costs for complaint investigations, if any.  (b)  Prior  to  the  submission  of the report, the commissioner shall convene a stakeholder workgroup consisting of hospital associations  and unions  representing nurses and other ancillary members of the frontline team. The stakeholder workgroup shall review the  report  prior  to  its submission  to  the  speaker of the assembly, the temporary president of the senate, and the chairs of the health committees of the assembly  and senate.   17.  Disclosure of nursing quality indicators. (a) Every facility with an operating certificate pursuant to the requirements  of  this  article shall  make available to the public information regarding nurse staffing and patient outcomes as  specified  by  the  commissioner  by  rule  and regulation.  The  commissioner shall promulgate rules and regulations on the  disclosure  of  nursing  quality  indicators  providing   for   the  disclosure   of   information  including  at  least  the  following,  as appropriate to the reporting facility:  (i)  The  number  of  registered  nurses providing direct care and the ratio of patients per registered nurse, full-time equivalent,  providing direct  care.  This information shall be expressed in actual numbers, in terms of total hours of nursing care per patient,  including  adjustment for  case mix and acuity, and as a percentage of patient care staff, and shall be broken down in terms of the  total  patient  care  staff,  each unit, and each shift.  (ii)  The  number  of licensed practical nurses providing direct care. This information shall be expressed in actual numbers, in terms of total hours of nursing care per patient including adjustment for case mix  and acuity,  and  as a percentage of patient care staff, and shall be broken down in terms of the total patient  care  staff,  each  unit,  and  each shift.  (iii)  The  number  of unlicensed personnel utilized to provide direct patient care,  including  adjustment  for  case  mix  and  acuity.  This information  shall  be  expressed  both  in  actual  numbers  and  as  a percentage of patient care staff and shall be broken down  in  terms  of the total patient care staff, each unit, and each shift.  (iv)  Incidence  of  adverse patient care, including incidents such as medication  errors,  patient  injury,   decubitus   ulcers,   nosocomial infections, and nosocomial urinary tract infections.  (v)  Methods  used  for  determining and adjusting staffing levels and patient care needs and the facility's compliance with these methods.  (vi) Data  regarding  complaints  filed  with  any  state  or  federal regulatory   agency,  or  an  accrediting  agency,  and  data  regarding investigations and findings as a result of those complaints,  degree  of compliance  with  acceptable  standards,  and  the findings of scheduled inspection visits.  (b) Such information shall be provided  to  the  commissioner  of  any state  agency  responsible for licensing or accrediting the facility, or responsible for overseeing the delivery of services either  directly  or indirectly,  to  any  employee  of  a general hospital or the employee's collective bargaining agent, if any, and to any member of the public who requests such information directly from the facility. Written statements containing such information shall state the source and date thereof.  (c) The commissioner shall  make  regulations  to  provide  a  uniform format  or  form  for  complying  with  the  reporting  requirements  of subparagraphs (i), (ii) and (iii) of paragraph (a) of this  subdivision, allowing  patients  and  the  public  to  clearly understand and compare staffing patterns and actual levels of staffing across facilities.  Such uniform  format  or form shall allow facilities to include a description of additional resources available to support unit level patient care and a description of the  general  hospital.  The  information  required  by subparagraphs  (i), (ii) and (iii) of paragraph (a) of this subdivision, reported in a manner determined by the commissioner, shall be filed with the  department  electronically  on  a  quarterly  basis  and  shall  be available  to  the  public  on the department's website. The regulations shall take effect no later  than  December  thirty-first,  two  thousand twenty-two.   Information   required   to   be   provided   pursuant  to subparagraphs (i), (ii) and (iii) of paragraph (a) of  this  subdivision shall  be  made  available  to  the public no later than July first, two thousand twenty-three.   18.  Advisory  commission.  (a)  There  is   hereby   established   an independent  advisory  commission,  composed of nine experts in staffing standards and quality of  patient  care,  including:  three  experts  in nursing practice, quality of nursing care or patient care standards, one  of  whom  shall  be  appointed  by  the  governor,  one of whom shall be appointed by the speaker of the  assembly  and  one  of  whom  shall  be appointed   by   the   temporary   president   of   the   senate;  three representatives  of  unions  representing  nurses,  one of whom shall be appointed by the governor, one of whom shall be appointed by the speaker of the assembly and one of whom shall  be  appointed  by  the  temporary president   of  the  senate;  and  three  members  representing  general hospitals, one of whom shall be appointed by the governor, one  of  whom shall  be appointed by the speaker of the assembly and one of whom shall be appointed by the temporary president of the senate.  The  members  of the  commission  shall serve at the pleasure of the appointing official. Members of  the  commission  shall  keep  confidential  any  information received in the course of their duties and may only use such information in  the  course  of  carrying out their duties on the commission, except those reports required  to  be  issued  by  the  commission  under  this section, which may only include de-identified information.  (b)  The  advisory commission shall convene from time to time in order to evaluate  the  effectiveness  of  the  clinical  staffing  committees required  by  this  section.  Such  review  shall evaluate the following metrics, including but not limited to quantitative and qualitative  data on  whether  staffing  levels  were  improved  and  maintained,  patient satisfaction, employee satisfaction, patient quality  of  care  metrics, workplace  safety,  and any other metrics the commission deems relevant. The commission shall also review the  annual  report  submitted  by  the department  and make recommendations to the speaker of the assembly, the temporary president  of  the  senate,  and  the  chairs  of  the  health committees  of  the assembly and senate as set forth in paragraph (d) of this subdivision.  (c) The advisory commission may collect  and  shall  be  provided  all relevant  information,  necessary  to  carry out its functions, from the department and other state agencies.  The  commission  may  also  invite testimony  by  experts  in  the field and from the public. In making its recommendations to the speaker of the assembly, the temporary  president of  the  senate, and the chairs of the health committees of the assembly and senate, the commission shall analyze relevant data,  including  data and  factors  set  forth  in  paragraph  (b) of subdivision four of this section related to clinical staffing plans. The commission may also make recommendations for additional or  enhanced  enforcement  mechanisms  or powers  to  address general hospital failure to comply with this section and recommend the appropriation of funding for the department to enforce this section or to assist general hospitals in hiring  additional  staff to comply with this section.  (d)  The  advisory  commission  shall  submit  to  the  speaker of the assembly, the temporary president of the senate and the  chairs  of  the health  committees of the assembly and senate, and make available to the public a report  that  makes  recommendations  to  the  speaker  of  the assembly,  the  temporary president of the senate, and the chairs of the health committees of the assembly and  senate  for  further  legislative action,  if  any,  in order to improve working conditions and quality of care in general hospitals pursuant to this section and its intent.  (e) The commission shall submit its report and recommendations to  the speaker  of the assembly, the temporary president of the senate, and the chairs of the health committees of the assembly and senate no later than October thirty-first, two thousand  twenty-four,  once  three  years  of staffing  plans  have  been submitted to the department pursuant to this section.  (f) Members of the commission shall receive no compensation for  their services,  but  shall  be  allowed  their  actual and necessary expenses incurred in the performance of their duties hereunder.  (g) The legislature may appropriate funding for the commission to hire staff  or consultants and provide for the operation of the commission as reasonably necessary to fulfill its functions.