NY Educ L § 6908 (2021)
2021 New York Laws EDN - Education Title 8 - The Professions Article 139 - Nursing 6908 - Exempt Persons.

§ 6908. Exempt persons. 1. This article shall not be construed:   a.  As  prohibiting  (i)  the  domestic  care of the sick, disabled or injured by any family member, household  member  or  friend,  or  person employed  primarily  in a domestic capacity who does not hold himself or herself out, or accept employment  as  a  person  licensed  to  practice nursing  under  the  provision  of  this  article; provided that if such person is remunerated, the person does not hold himself or  herself  out as  one  who  accepts  employment  for  performing  such  care;  or  the administration of medications or treatment by child day  care  providers or  employees  or  caregivers  of  child  day  care  programs where such providers, employees or caregivers are acting under  the  direction  and authority of a parent of a child, legal guardian, legal custodian, or an adult  in  whose  care  a  child  has  been  entrusted  and who has been authorized by the parent to consent to any health care for the child and in compliance with the regulations of the office of children and  family services  pertaining to the administration of medications and treatment; or  (ii) any person from the domestic administration of  family  remedies; or  (iii)  the  providing  of  care  by  a person acting in the place of a person exempt under clause (i) of this  paragraph,  but  who  does  hold himself or herself out as one who accepts employment for performing such care,  where  nursing  services  are under the instruction of a licensed nurse, or under the instruction of a  patient  or  family  or  household member   determined   by   a   registered   professional   nurse  to  be self-directing and capable of providing such instruction,  and  services are  provided  under  section  three  hundred sixty-five-f of the social services law; or  (iv) the furnishing of nursing assistance in case of an emergency; or  (v) tasks provided by a direct support staff in programs certified  or approved  by the office for people with developmental disabilities, when performed under the supervision of a registered professional  nurse  and pursuant  to a memorandum of understanding between the office for people with developmental disabilities and the department, in  accordance  with and  pursuant  to  an  authorized  practitioner's ordered care, provided that: (1) a registered professional nurse  determines,  in  his  or  her professional  judgment,  which  tasks are to be performed based upon the complexity of the tasks, the skill and experience of the direct  support staff, and the health status of the individual being cared for; (2) only a  direct  support  staff  who has completed training as required by the commissioner of the office for people  with  developmental  disabilities may  perform  tasks  pursuant  to  this  subparagraph;  (3)  appropriate protocols  shall  be  established  to  ensure  safe  administration   of medications;  (4) a direct support staff shall not assess the medication needs of an individual; (5) adequate nursing  supervision  is  provided, including  training and periodic inspection of performance of the tasks. The amount and type of nursing supervision shall be  determined  by  the registered  professional  nurse  responsible  for  supervising such task based upon the complexity of the tasks, the skill and experience of  the direct  support  staff,  and  the  health status of the individual being cared for; (6) a direct support staff shall not be authorized to perform any tasks or activities pursuant to this subparagraph that  are  outside the  scope  of  practice  of  a  licensed  practical nurse; (7) a direct support  staff  shall  not  represent  himself  or  herself,  or  accept employment,   as  a  person  licensed  to  practice  nursing  under  the provisions  of  this  article;  (8)  direct  support   staff   providing medication  administration,  tube  feeding,  or  diabetic  care shall be separately certified, and shall be recertified on an annual  basis;  (9)  the  registered professional nurse shall ensure that there is a consumer specific medication sheet for each medication that is administered;  and (10)  appropriate  staffing ratios shall be determined by the office for people  with  developmental  disabilities  and  the department to ensure adequate nursing supervision. No  direct  support  staff  shall  perform tasks   under  this  subparagraph  until  the  office  for  people  with developmental disabilities  and  the  department  have  entered  into  a memorandum  of  understanding  to  effectuate  the  provisions  of  this subparagraph. The office  for  people  with  developmental  disabilities shall  complete a criminal background check pursuant to section 16.33 of the mental hygiene law  and  an  agency  background  check  pursuant  to section  16.34  of  the  mental  hygiene law on the direct support staff prior to the commencement of any provision  of  service  provided  under this   subparagraph  if  such  direct  support  staff  is  a  new  hire. Individuals providing supervision or direct support  tasks  pursuant  to this  subparagraph  shall  have  protection  pursuant  to sections seven hundred forty and seven  hundred  forty-one  of  the  labor  law,  where applicable;   b. As including services given by attendants in institutions under the jurisdiction  of or subject to the visitation of the state department of mental hygiene if adequate medical and nursing supervision is provided;   c. As prohibiting such performance  of  nursing  service  by  students enrolled in registered schools or programs as may be incidental to their course of study;   d.  As prohibiting or preventing the practice of nursing in this state by any legally qualified nurse or  practical  nurse  of  another  state, province,  or  country whose engagement requires him or her to accompany and care for a patient temporarily residing in  this  state  during  the period  of  such  engagement  provided such person does not represent or hold himself or herself out as a nurse or practical nurse registered  to practice in this state;   e.  As prohibiting or preventing the practice of nursing in this state during an emergency or  disaster  by  any  legally  qualified  nurse  or practical  nurse  of  another  state,  province,  or  country who may be recruited by the American National Red Cross or  pursuant  to  authority vested  in  the  state  civil  defense  commission for such emergency or disaster service, provided  such  person  does  not  represent  or  hold himself  or  herself  out  as  a  nurse or practical nurse registered to practice in this state;   f. As prohibiting or preventing the practice of nursing in this state, in obedience to the requirements of the laws of the  United  States,  by any  commissioned nurse officer in the armed forces of the United States or by any nurse employed in the United States veterans administration or United States public health service while engaged in the performance  of the  actual  duties  prescribed  for  him or her under the United States statutes, provided such person does not represent  or  hold  himself  or herself out as a nurse registered to practice in this state; or   g.  As  prohibiting  the care of the sick when done in connection with the practice of the religious tenets of any church.   h. As  prohibiting  the  provision  of  psychotherapy  as  defined  in subdivision  two of section eighty-four hundred one of this title to the extent permissible within the scope of practice of nursing as defined in this title, by any not-for-profit corporation or  education  corporation providing  services  within  the  state  and  operating  under  a waiver pursuant to section sixty-five hundred three-a of this  title,  provided that  such  entities  offering  such  psychotherapy  services shall only provide such services through an individual  appropriately  licensed  or  otherwise  authorized  to provide such services or a professional entity authorized by law to provide such services.   * 2. This article shall not be construed as prohibiting advanced tasks provided  by an advanced home health aide in accordance with regulations developed by the commissioner, in consultation with the commissioner  of health. At a minimum, such regulations shall:   a.  specify  the advanced tasks that may be performed by advanced home health aides pursuant to this subdivision. Such tasks shall include  the administration  of  medications  which  are  routine  and  prefilled  or otherwise  packaged  in  a  manner  that  promotes  relative   ease   of administration,   provided   that   administration   of  medications  by injection, sterile procedures, and central  line  maintenance  shall  be prohibited.  Provided,  however,  such  prohibition  shall  not apply to injections  of  insulin  or  other  injections  for  diabetes  care,  to injections   of   low   molecular  weight  heparin,  and  to  pre-filled auto-injections of naloxone and epinephrine for emergency purposes,  and provided,  further,  that  entities employing advanced home health aides pursuant to this subdivision shall establish a  systematic  approach  to address drug diversion;   b. provide that advanced tasks performed by advanced home health aides may  be  performed  only  under  the  direct supervision of a registered professional nurse licensed in New York state,  as  set  forth  in  this subdivision  and subdivision eight of section sixty-nine hundred nine of this article, where such nurse is  employed  by  a  home  care  services agency  licensed  or  certified  pursuant  to  article thirty-six of the public health law, a hospice program certified pursuant to article forty of the public health law,  or  an  enhanced  assisted  living  residence licensed  pursuant  to  article  seven  of  the  social services law and certified pursuant to article forty-six-B of the public health law. Such nursing supervision shall:  (i) include training and periodic assessment  of  the  performance  of advanced tasks;  (ii)  be  determined  by the registered professional nurse responsible for supervising such advanced tasks based upon the  complexity  of  such advanced  tasks,  the  skill  and experience of the advanced home health aide, and the health status of the individual  for  whom  such  advanced tasks are being performed;  (iii)  include  a  comprehensive  initial  and  thereafter regular and ongoing assessment of the individual's needs;  (iv)  include  as  a  requirement  that  the  supervising   registered professional  nurse  shall  visit individuals receiving services for the purpose of supervising the services provided  by  advanced  home  health aides  no  less  than  once every two weeks and include as a requirement that a registered professional nurse shall be available by telephone  to the  advanced  home  health  aide  twenty-four hours a day, seven days a week, provided that a registered professional nurse shall  be  available to  visit  an  individual receiving services as necessary to protect the health and safety of such individual; and  (v) as shall be specified by the commissioner, be provided in a manner that takes into account individual care needs, case mix  complexity  and geographic  considerations  and  provide  that the number of individuals served by a supervising registered professional nurse is reasonable  and prudent.   c.  establish  a  process by which a registered professional nurse may assign advanced tasks to an advanced  home  health  aide.  Such  process shall include, but not be limited to:  (i)  allowing  assignment of advanced tasks to an advanced home health aide only where such advanced home health aide has demonstrated  to  the  satisfaction of the supervising registered professional nurse competency in every advanced task that such advanced home health aide is authorized to  perform,  a  willingness  to  perform  such  advanced tasks, and the ability  to  effectively and efficiently communicate with the individual receiving services and understand such individual's needs;  (ii) prohibiting assignment of advanced  tasks  to  an  advanced  home health  aide  if the individual receiving services declines to be served by an advanced home health aide;  (iii) authorizing the supervising  registered  professional  nurse  to revoke  any assigned advanced task from an advanced home health aide for any reason; and  (iv) authorizing multiple registered professional  nurses  to  jointly agree to assign advanced tasks to an advanced home health aide, provided further that only one registered professional nurse shall be required to determine  if  the advanced home health aide has demonstrated competency in the advanced task to be performed;   d. provide that advanced tasks may be  performed  only  in  accordance with and pursuant to an authorized health practitioner's ordered care;   e. provide that only a certified home health aide may perform advanced tasks as an advanced home health aide when such aide has:  (i)  at  least  one year of experience providing either home health or personal care services, or a combination of the same;  (ii) completed the requisite training and demonstrated competencies of an advanced home health  aide  as  determined  by  the  commissioner  in consultation with the commissioner of health;  (iii)  successfully  completed competency examinations satisfactory to the commissioner in consultation with the commissioner of health; and  (iv) meets other  appropriate  qualifications  as  determined  by  the commissioner in consultation with the commissioner of health;   f.  provide  that  only  an  individual who is listed in the home care services registry maintained by the department  of  health  pursuant  to section  thirty-six  hundred thirteen of the public health law as having satisfied all applicable training requirements  and  having  passed  the applicable  competency  examinations and who meets other requirements as set forth in regulations issued by the commissioner of  health  pursuant to subdivision seventeen of section thirty-six hundred two of the public health  law  may perform advanced tasks pursuant to this subdivision and may hold himself or herself out as an advanced home health aide;   g. establish minimum standards of  training  for  the  performance  of advanced  tasks  by  advanced  home  health  aides,  including  didactic training, clinical training, and a supervised  clinical  practicum  with standards set forth by the commissioner of health;   h. provide that advanced home health aides shall receive case-specific training  on the advanced tasks to be assigned by the supervising nurse, provided that additional training shall take place  whenever  additional advanced tasks are assigned;   i.  prohibit  an  advanced  home  health  aide from holding himself or herself out, or accepting employment as, a person licensed  to  practice nursing under the provisions of this article;   j.  provide  that  an  advanced  home  health aide is not required nor permitted to assess the medication or medical needs of an individual;   k. provide that an advanced home health aide shall not  be  authorized to perform any advanced tasks or activities pursuant to this subdivision that  are outside the scope of practice of a licensed practical nurse or any advanced tasks that have not  been  appropriately  assigned  by  the supervising registered professional nurse;   l.  provide  that  an  advanced  home  health  aide shall document all advanced  tasks  provided  to  an   individual,   including   medication  administration  to  each  individual  through  the  use  of a medication administration record; and   m.  provide  that  the supervising registered professional nurse shall retain the discretion to decide whether  to  assign  advanced  tasks  to advanced  home  health aides under this program and shall not be subject to coercion, retaliation, or the threat of  retaliation;  in  developing such   regulations,   the  commissioner  shall  take  into  account  the recommendations  of  a  workgroup  of  stakeholders  convened   by   the commissioner  of  health  in  consultation with the commissioner for the purpose of providing guidance on the foregoing.   * NB Repealed March 31, 2023