2023 New York Laws › PBH - Public Health › Article 28-D - Practice of Nursing Home Administration › Title 1 - General Provisions and Public Policy › 2895-B - Nursing Home Staffing Levels.

§  2895-b.  Nursing  home  staffing levels. 1. Definitions. As used in
this section, the following terms shall have the following meanings:
(a) "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.
(b) "Licensed nurse" means a registered professional nurse or licensed
practical nurse licensed pursuant to article one hundred thirty-nine  of
the education law.
(c) "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.
(d) "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.
2. Staffing standards. (a)  The  commissioner  shall,  by  regulation,
establish staffing standards for nursing home minimum staffing levels to
meet applicable standards of service and care and to provide services to
attain  or  maintain  the  highest  practicable  physical,  mental,  and
psychosocial well-being of each resident  of  the  facility.  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.
(b)  The  commissioner shall establish, by regulation, civil penalties
for facilities out of compliance  with  minimum  staffing  levels.  Such
regulations shall include a range of penalties to account for mitigating
factors which shall include:
(i)  extraordinary  circumstances  facing the facility, including, but
not limited to, whether the facility  has  suffered  through  a  natural
disaster  or  other  catastrophic event, an officially declared national
emergency, or state or municipal emergency declared pursuant to  article
two-B of the executive law, which has been initially declared subsequent
to  the  effective  date  of  this  section, or other such conditions or
unforeseen circumstances as determined by the commissioner;
(ii) the frequency and nature of non-compliance; and
(iii) the existence  of  an  acute  labor  supply  shortage  within  a
particular  region.  When  determining if there is an acute labor supply
shortage within a specific region in a specific quarter,  or  a  shorter
period of time as determined by the commissioner, the commissioner shall
take  into consideration the following factors: regional labor supply of
available  certified  nurse  aides,  licensed   practical   nurses   and
registered  nurses;  regional  pay  rates  for  the  relevant  titles as
determined  by  the  federal  department  of  labor,  bureau  of   labor
statistics;   and  evidence  that  the  facility  attempted  to  procure
sufficient staffing.
(c)  At  least  thirty  days  before  any  action  is  taken  by   the
commissioner  under  paragraph (b) of this subdivision, the commissioner
shall post the assessed penalties, and any mitigating factors that  were
considered in assessing the penalty on the department's website.
(d) In determining whether a nursing home has violated its obligations
under this section, it shall not be a defense that such nursing home was
unable   to  secure  sufficient  staff  if  the  lack  of  staffing  was
foreseeable and could be prudently  planned  for,  or  involved  routine
staffing  needs  that  arose  due  to typical staffing patterns, typical
levels of absenteeism, or time off typically approved  by  the  employer
for vacation, holidays, sick leave, and personal leave.
(e)  A  civil  penalty  shall  not be imposed under this section until
after April first, two thousand twenty-two;
(f) Every nursing home shall:
(i) comply with the staffing standards under this section; and
(ii) employ sufficient staffing levels to meet applicable standards of
service and care and to provide service and care and to provide services
to  attain  or  maintain  the  highest practicable physical, mental, and
psychosocial well-being of each resident of the facility.
(g) Staffing standards established under this subdivision shall, at  a
minimum,  be  the staffing standards established under subdivision three
of this section.
(h) The  minimum  staffing  standard  includes  the  hours  which  are
required  to  be  reported  by a nursing home to the federal Centers for
Medicare and Medicaid Services through the  payroll  based  journal  for
long-term  care for certified nursing assistants and licensed nurses. In
determining  compliance  with  the   staffing   standards   under   this
subdivision,  an  individual  shall  not  be  counted  while  performing
administrative services as defined in  the  payroll  based  journal  for
long-term care facilities.
3.  Statutory  standard.  (a)  Beginning  January  first, two thousand
twenty-two every nursing home  shall  maintain  daily  average  staffing
hours  equal  to  3.5  hours of care per resident per day by a certified
nurse aide, a licensed nurse or a nurse aide; provided that out of  such
3.5  hours, no less than 2.2 hours of care per resident per day shall be
provided by a certified nurse aide or a nurse aide, and no less than 1.1
hours of care per resident per day  shall  be  provided  by  a  licensed
nurse.
(b)  Beginning January first, two thousand twenty-three and thereafter
every nursing home shall maintain daily average staffing hours equal  to
3.5  hours  of  care per resident per day by a certified nurse aide or a
licensed nurse; provided that out of such 3.5 hours, no  less  than  2.2
hours  of  care  per  resident  per day shall be provided by a certified
nurse aide, and no less than 1.1 hours of  care  per  resident  per  day
shall be provided by a licensed nurse.
4. Public disclosure of staffing levels. (a) A nursing home shall post
information  regarding  nurse  staffing that the facility is required to
make available to the public under section twenty-eight  hundred  five-t
of  this chapter. Information under this paragraph shall be displayed in
a form approved by the department and be posted in  a  manner  which  is
visible  and  accessible  to residents, their families and the staff, as
required by the commissioner.
(b) A nursing home shall post a summary of this section,  provided  by
the  department,  in proximity to each posting required by paragraph (a)
of this subdivision.