N.Y. Public Health Law § 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.