N.Y. Education Law § 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