S T A T E O F N E W Y O R K
________________________________________________________________________
7119
2021-2022 Regular Sessions
I N A S S E M B L Y
April 22, 2021
___________
Introduced by M. of A. GUNTHER -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to establishing stan-
dard nursing home staffing levels
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public health law is amended by adding a new section
2895-b to read as follows:
§ 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 FACILI-
TIES 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 PSYCHO-
SOCIAL 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11046-03-1
A. 7119 2
(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 PARTIC-
ULAR REGION. WHEN DETERMINING IF THERE IS AN ACUTE LABOR SUPPLY SHORT-
AGE 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 REGIS-
TERED 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 COMMISSION-
ER 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 FORESEEA-
BLE 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 VACA-
TION, 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 SUBDIVI-
SION, 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 TWEN-
TY-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
A. 7119 3
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.
§ 2. If any provision of this act, or any application of any provision
of this act, is held to be invalid, or to violate or be inconsistent
with any federal law or regulation, that shall not affect the validity
or effectiveness of any other provision of this act, or of any other
application of any provision of this act, which can be given effect
without that provision or application; and to that end, the provisions
and applications of this act are severable.
§ 3. This act shall take effect immediately.