2023 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, 2029