A. 1921 2
intent of this act is to protect the health and safety of the residents
of New York state by ensuring adequate protection and care for patients
in healthcare facilities.
§ 3. The public health law is amended by adding a new article 28-F to
read as follows:
ARTICLE 28-F
SAFE STAFFING FOR HOSPITAL CARE
SECTION 2899-AA. FACILITY STAFFING STANDARD.
2899-BB. COMPLIANCE WITH PLAN AND RECORDKEEPING.
2899-CC. MANDATORY OVERTIME AND EXCESSIVE DUTY HOURS.
2899-DD. EMPLOYEE RIGHTS.
2899-EE. ENFORCEMENT.
§ 2899-AA. FACILITY STAFFING STANDARD. 1. EACH FACILITY LICENSED
PURSUANT TO THIS ARTICLE SHALL ENSURE THAT IT IS STAFFED IN A MANNER
THAT PROVIDES SUFFICIENT, APPROPRIATELY QUALIFIED NURSING STAFF OF EACH
CLASSIFICATION IN EACH DEPARTMENT OR UNIT WITHIN THE FACILITY IN ORDER
TO MEET THE INDIVIDUALIZED CARE NEEDS OF PATIENTS.
2. NOTWITHSTANDING ANY LAW TO THE CONTRARY, AS A CONDITION OF LICENS-
ING, EACH HEALTHCARE FACILITY LICENSED WITHIN THE STATE SHALL ANNUALLY
SUBMIT TO THE DEPARTMENT A DOCUMENTED STAFFING PLAN TOGETHER WITH A
WRITTEN CERTIFICATION THAT THE STAFFING PLAN IS SUFFICIENT TO PROVIDE
ADEQUATE AND APPROPRIATE DELIVERY OF HEALTHCARE SERVICES TO PATIENTS FOR
THE ENSUING YEAR. THE STAFFING PLAN MUST:
(A) MEET THE MINIMUM REQUIREMENTS ESTABLISHED IN SUBDIVISION THREE OF
THIS SECTION.
(B) BE ADEQUATE TO MEET ANY ADDITIONAL REQUIREMENTS PROVIDED BY OTHER
LAWS OR REGULATIONS.
(C) EMPLOY AND IDENTIFY AN APPROVED ACUITY SYSTEM FOR ADDRESSING FLUC-
TUATIONS IN ACTUAL PATIENT ACUITY LEVELS AND NURSING CARE REQUIREMENTS
REQUIRING INCREASED STAFFING LEVELS ABOVE THE MINIMUMS SET FORTH IN THE
PLAN.
(D) FACTOR IN OTHER UNIT OR DEPARTMENT WORK, SUCH AS DISCHARGES,
TRANSFERS AND ADMISSIONS, AND ADMINISTRATIVE AND SUPPORT TASKS, THAT IS
EXPECTED TO BE DONE BY DIRECT-CARE NURSES IN ADDITION TO DIRECT NURSING
CARE.
(E) IDENTIFY THE ASSESSMENT TOOL USED TO VALIDATE THE ACUITY SYSTEM
RELIED ON IN THE PLAN.
(F) IDENTIFY THE SYSTEM THAT WILL BE USED TO DOCUMENT ACTUAL STAFFING
ON A DAILY BASIS WITHIN EACH DEPARTMENT OR UNIT.
(G) INCLUDE A WRITTEN ASSESSMENT OF THE ACCURACY OF THE PRIOR YEAR'S
STAFFING PLAN IN LIGHT OF ACTUAL STAFFING NEEDS.
(H) IDENTIFY EACH NURSE STAFF CLASSIFICATION REFERENCED THEREIN
TOGETHER WITH A STATEMENT SETTING FORTH MINIMUM QUALIFICATIONS FOR EACH
SUCH CLASSIFICATION.
(I) BE DEVELOPED IN CONSULTATION WITH THE DIRECT-CARE NURSING STAFF
WITHIN EACH DEPARTMENT OR UNIT OR, WHERE SUCH STAFF IS REPRESENTED, WITH
THE APPLICABLE RECOGNIZED OR CERTIFIED COLLECTIVE BARGAINING REPRESEN-
TATIVE OR REPRESENTATIVES OF THE DIRECT-CARE NURSING STAFF.
3. THE HEALTHCARE FACILITY'S STAFFING PLAN MUST INCORPORATE, AT A
MINIMUM, THE FOLLOWING DIRECT-CARE NURSE-TO-PATIENT RATIOS: PEDIATRIC
RECOVERY ROOM--ONE TO ONE, OPERATING ROOM CIRCULATING NURSE--ONE TO ONE,
SPECIAL PROCEDURES (E.G. CATH LAB, RADIOLOGY, ENDOSCOPY)--ONE TO ONE,
TRAUMA--ONE TO ONE, BURN UNIT--ONE TO TWO, CRITICAL CARE--ONE TO TWO,
LABOR AND DELIVERY--ONE TO TWO, ADULT RECOVERY ROOM--ONE TO TWO, EMER-
A. 1921 3
GENCY ROOM--ONE TO THREE, ONCOLOGY/CHEMOTHERAPY--ONE TO THREE, INTERME-
DIATE CARE UNIT--ONE TO THREE, TELEMETRY--ONE TO THREE, MOTHER/BABY
COUPLETS AND NORMAL POST-PARTUM--ONE TO FOUR, PEDIATRICS--ONE TO FOUR,
PSYCHIATRIC UNIT--ONE TO FOUR, ADULT MEDICAL-SURGICAL UNIT--ONE TO SIX.
4. THE DEPARTMENT SHALL ADOPT REGULATIONS THAT ESTABLISH MINIMUM,
SPECIFIC, NUMERICAL DIRECT-CARE NURSE-TO-PATIENT RATIOS FOR OTHER
HEALTHCARE FACILITY NURSING DEPARTMENTS AND UNITS THAT MUST BE INCORPO-
RATED INTO THE STAFFING PLAN.
5. THE MINIMUM NUMBERS OF DIRECT-CARE NURSE-TO-PATIENT STAFF SET FORTH
IN THIS SECTION SHALL CONSTITUTE THE MINIMUM NUMBERS OF DIRECT-CARE
NURSING STAFF THAT SHALL BE ASSIGNED TO AND BE PRESENT WITHIN A NURSING
DEPARTMENT OR UNIT. WHERE THE APPROVED ACUITY SYSTEM ADOPTED BY THE
FACILITY INDICATES THAT ADDITIONAL STAFF IS REQUIRED, THE HEALTHCARE
FACILITY MUST STAFF AT THE HIGHER STAFFING LEVEL.
6. THE SKILL MIX REFLECTED IN A STAFFING PLAN MUST ASSURE THAT ALL OF
THE FOLLOWING ELEMENTS OF THE NURSING PROCESS ARE PERFORMED IN THE PLAN-
NING AND DELIVERY OF CARE FOR EACH PATIENT:
(A) ASSESSMENT, NURSING DIAGNOSIS, PLANNING, INTERVENTION, EVALUATION
AND PATIENT ADVOCACY.
(B) REGISTERED NURSES MUST CONSTITUTE AT LEAST FIFTY PERCENT OF THE
DIRECT-CARE NURSES INCLUDED IN THE STAFFING PLAN.
(C) THE SKILL MIX MAY NOT INCORPORATE OR ASSUME THAT NURSING CARE
FUNCTIONS REQUIRED BY LICENSING LAW OR REGULATIONS OR ACCEPTED STANDARDS
OF PRACTICE TO BE PERFORMED BY A LICENSED NURSE ARE TO BE PERFORMED BY
UNLICENSED PERSONNEL.
7. THE DEPARTMENT SHALL ADOPT REGULATIONS PRESCRIBING THE METHOD BY
WHICH IT WILL APPROVE A HEALTHCARE FACILITY'S ACUITY SYSTEM. SUCH REGU-
LATIONS MAY INCLUDE A SYSTEM FOR CLASS APPROVAL OF ACUITY SYSTEMS.
§ 2899-BB. COMPLIANCE WITH PLAN AND RECORDKEEPING. 1. NOTWITHSTANDING
ANY LAW TO THE CONTRARY, AS A CONDITION OF LICENSING, A HEALTHCARE
FACILITY LICENSED WITHIN THE STATE MUST AT ALL TIMES STAFF IN ACCORDANCE
WITH ITS STAFFING PLAN AND THE STAFFING STANDARDS ESTABLISHED PURSUANT
TO THIS ARTICLE, PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE DEEMED
TO PRECLUDE A HEALTHCARE FACILITY FROM IMPLEMENTING HIGHER DIRECT-CARE
NURSE-TO-PATIENT STAFFING LEVELS.
2. NO NURSE SHALL BE ASSIGNED, OR INCLUDED IN THE COUNT OF ASSIGNED
NURSING STAFF FOR PURPOSES OF COMPLIANCE WITH MINIMUM STAFFING REQUIRE-
MENTS, IN A NURSING DEPARTMENT OR UNIT OR A CLINICAL AREA WITHIN THE
HEALTHCARE FACILITY WITHOUT APPROPRIATE LICENSING, PRIOR ORIENTATION,
AND VERIFICATION THAT THE NURSE IS CAPABLE OF PROVIDING COMPETENT NURS-
ING CARE TO THE PATIENTS THEREIN.
3. AS A CONDITION OF LICENSURE, EACH HEALTHCARE FACILITY LICENSED
PURSUANT TO THIS ARTICLE SHALL MAINTAIN ACCURATE DAILY RECORDS SHOWING:
(A) THE NUMBER OF PATIENTS ADMITTED, RELEASED AND PRESENT IN EACH
NURSING DEPARTMENT OR UNIT WITHIN THE FACILITY.
(B) THE INDIVIDUAL ACUITY LEVEL OF EACH PATIENT PRESENT IN EACH NURS-
ING DEPARTMENT OR UNIT WITHIN THE FACILITY.
(C) THE IDENTITY AND DUTY HOURS OF EACH DIRECT-CARE NURSE IN EACH
NURSING DEPARTMENT OR UNIT WITHIN THE FACILITY.
4. NOTWITHSTANDING ANY LAW TO THE CONTRARY, AS A CONDITION OF LICEN-
SURE, EACH HEALTHCARE FACILITY LICENSED WITHIN THE STATE SHALL MAINTAIN
DAILY STATISTICS, BY NURSING DEPARTMENT AND UNIT, OF MORTALITY, MORBIDI-
TY, INFECTION, ACCIDENT, INJURY AND MEDICAL ERRORS.
5. ALL RECORDS REQUIRED TO BE KEPT PURSUANT TO THIS SECTION SHALL BE
MAINTAINED FOR A PERIOD OF SEVEN YEARS.
A. 1921 4
6. ALL RECORDS REQUIRED TO BE KEPT PURSUANT TO THIS SECTION SHALL BE
MADE AVAILABLE UPON REQUEST TO THE DEPARTMENT AND TO THE PUBLIC,
PROVIDED, HOWEVER, THAT INFORMATION RELEASED TO THE PUBLIC SHALL NOT
CONTAIN THE NAME OR OTHER PERSONAL IDENTIFYING INFORMATION, APART FROM
ACUITY LEVEL, ABOUT ANY INDIVIDUAL PATIENT.
§ 2899-CC. MANDATORY OVERTIME AND EXCESSIVE DUTY HOURS. 1. EXCEPT
DURING A STATE OF EMERGENCY DECLARED BY THE GOVERNOR, A HEALTHCARE
FACILITY MAY NOT MANDATE OR OTHERWISE REQUIRE, DIRECTLY OR INDIRECTLY, A
HEALTHCARE EMPLOYEE TO WORK OR BE IN ON-DUTY STATUS IN EXCESS OF ANY ONE
OF THE FOLLOWING:
(A) THE SCHEDULED WORK SHIFT OR DUTY PERIOD.
(B) TWELVE HOURS IN A TWENTY-FOUR-HOUR PERIOD.
(C) EIGHTY HOURS IN A CONSECUTIVE FOURTEEN-DAY PERIOD.
"MANDATE" FOR THE PURPOSES OF THIS SUBDIVISION MEANS ANY REQUEST
WHICH, IF REFUSED OR DECLINED BY THE HEALTHCARE EMPLOYEE, MAY RESULT IN
DISCHARGE, DISCIPLINE, LOSS OF PROMOTION, OR OTHER ADVERSE EMPLOYMENT
CONSEQUENCE. NOTHING IN THIS SECTION IS INTENDED TO PROHIBIT A HEALTH-
CARE EMPLOYEE FROM VOLUNTARILY WORKING OVERTIME.
2. EXCEPT DURING A STATE OF EMERGENCY DECLARED BY THE GOVERNOR:
(A) NO HEALTHCARE EMPLOYEE MAY WORK OR BE IN ON-DUTY STATUS MORE THAN
SIXTEEN HOURS IN ANY TWENTY-FOUR-HOUR PERIOD.
(B) ANY HEALTHCARE EMPLOYEE WORKING SIXTEEN HOURS IN ANY TWENTY-FOUR-
HOUR PERIOD MUST HAVE AT LEAST EIGHT CONSECUTIVE HOURS OFF DUTY BEFORE
BEING REQUIRED TO RETURN TO DUTY.
(C) NO HEALTHCARE EMPLOYEE MAY BE REQUIRED TO WORK OR BE ON-DUTY MORE
THAN SEVEN CONSECUTIVE DAYS WITHOUT AT LEAST ONE CONSECUTIVE TWENTY-
FOUR-HOUR PERIOD OFF DUTY WITHIN THAT TIME.
3. A WORK SHIFT SCHEDULE OR OVERTIME PROGRAM ESTABLISHED PURSUANT TO A
COLLECTIVE BARGAINING AGREEMENT NEGOTIATED ON BEHALF OF THE HEALTHCARE
EMPLOYEES BY A BONA FIDE LABOR ORGANIZATION MAY PROVIDE FOR MANDATORY
ON-DUTY HOURS IN EXCESS OF THAT PERMITTED UNDER THIS SECTION, PROVIDED
ADEQUATE MEASURES ARE INCLUDED IN THE AGREEMENT TO ENSURE AGAINST EXCES-
SIVE FATIGUE ON THE PART OF THE AFFECTED EMPLOYEES.
§ 2899-DD. EMPLOYEE RIGHTS. 1. NOTWITHSTANDING ANY LAW TO THE CONTRA-
RY, AS A CONDITION OF LICENSURE, EACH HEALTHCARE FACILITY LICENSED WITH-
IN THE STATE SHALL ADOPT AND DISSEMINATE TO DIRECT-CARE NURSING STAFF A
WRITTEN POLICY THAT COMPLIES WITH THE REQUIREMENTS SET FORTH IN SUBDIVI-
SIONS TWO AND THREE OF THIS SECTION, DETAILING THE CIRCUMSTANCES UNDER
WHICH A DIRECT-CARE NURSE MAY REFUSE A WORK ASSIGNMENT.
2. AT A MINIMUM, THE WORK ASSIGNMENT POLICY SHALL PERMIT A DIRECT-CARE
NURSE TO REFUSE AN ASSIGNMENT FOR WHICH:
(A) THE NURSE IS NOT PREPARED BY EDUCATION, TRAINING OR EXPERIENCE TO
SAFELY FULFILL THE ASSIGNMENT WITHOUT COMPROMISING OR JEOPARDIZING
PATIENT SAFETY, THE NURSE'S ABILITY TO MEET FORESEEABLE PATIENT NEEDS,
OR THE NURSE'S LICENSE.
(B) THE NURSE HAS VOLUNTEERED TO WORK OVERTIME BUT DETERMINES THAT HIS
OR HER LEVEL OF FATIGUE AND/OR DECREASED ALERTNESS WOULD COMPROMISE OR
JEOPARDIZE PATIENT SAFETY, THE NURSE'S ABILITY TO MEET FORESEEABLE
PATIENT NEEDS, OR THE NURSE'S LICENSE.
(C) THE ASSIGNMENT OTHERWISE WOULD VIOLATE REQUIREMENTS ESTABLISHED
PURSUANT TO THIS ARTICLE.
3. AT A MINIMUM, THE WORK ASSIGNMENT POLICY SHALL CONTAIN PROCEDURES
FOR THE FOLLOWING:
(A) REASONABLE REQUIREMENTS FOR PRIOR NOTICE TO A NURSE'S SUPERVISOR
REGARDING THE NURSE'S REQUEST AND SUPPORTING REASONS FOR BEING RELIEVED
OF AN ASSIGNMENT OR CONTINUED DUTY.
A. 1921 5
(B) WHERE FEASIBLE, AN OPPORTUNITY FOR THE SUPERVISOR TO REVIEW THE
SPECIFIC CONDITIONS SUPPORTING THE NURSE'S REQUEST, AND TO DECIDE WHETH-
ER TO REMEDY THE CONDITIONS, TO RELIEVE THE NURSE OF THE ASSIGNMENT, OR
TO DENY THE NURSE'S REQUEST TO BE RELIEVED OF THE ASSIGNMENT OR CONTIN-
UED DUTY.
(C) A PROCESS WHICH PERMITS THE NURSE TO EXERCISE THE RIGHT TO REFUSE
THE ASSIGNMENT OR CONTINUED ON-DUTY STATUS WHEN THE SUPERVISOR DENIES
THE REQUEST TO BE RELIEVED IF:
(I) THE SUPERVISOR REJECTS THE REQUEST WITHOUT PROPOSING A REMEDY, OR
THE PROPOSED REMEDY WOULD BE INADEQUATE OR UNTIMELY.
(II) THE COMPLAINT AND INVESTIGATION PROCESS WITH THE DEPARTMENT WOULD
BE UNTIMELY TO ADDRESS THE CONCERN.
(III) THE EMPLOYEE IN GOOD FAITH BELIEVES THAT THE ASSIGNMENT MEETS
CONDITIONS JUSTIFYING REFUSAL.
4. AN EMPLOYEE IS DEEMED TO ACT IN GOOD FAITH IF THE EMPLOYEE REASON-
ABLY BELIEVES THAT THE INFORMATION REPORTED OR DISCLOSED IS TRUE, AND
THAT A VIOLATION HAS OCCURRED OR MAY OCCUR. A HEALTHCARE FACILITY
COVERED BY THIS ARTICLE SHALL NOT PENALIZE, DISCRIMINATE OR RETALIATE IN
ANY MANNER AGAINST AN EMPLOYEE WITH RESPECT TO COMPENSATION, TERMS,
CONDITIONS OR PRIVILEGES OF EMPLOYMENT, WHO IN GOOD FAITH, INDIVIDUALLY
OR IN CONJUNCTION WITH ANOTHER PERSON OR PERSONS:
(A) REPORTS A VIOLATION OR SUSPECTED VIOLATION OF THIS SECTION TO A
PUBLIC REGULATORY AGENCY, A PRIVATE ACCREDITATION BODY, OR MANAGEMENT
PERSONNEL OF THE HEALTHCARE FACILITY,
(B) INITIATES, COOPERATES OR OTHERWISE PARTICIPATES IN AN INVESTI-
GATION OR PROCEEDING BROUGHT BY A REGULATORY AGENCY OR PRIVATE ACCREDI-
TATION BODY CONCERNING MATTERS COVERED BY THIS SECTION,
(C) INFORMS OR DISCUSSES WITH OTHER EMPLOYEES, WITH REPRESENTATIVE OR
REPRESENTATIVES OF THE EMPLOYEES, WITH PATIENTS OR PATIENT REPRESEN-
TATIVES, OR WITH THE PUBLIC, VIOLATIONS OR SUSPECTED VIOLATIONS OF THIS
SECTION, OR
(D) OTHERWISE AVAILS HIMSELF OR HERSELF OF THE RIGHTS ESTABLISHED
PURSUANT TO THIS ARTICLE.
§ 2899-EE. ENFORCEMENT. 1. NOTWITHSTANDING ANY RIGHT OF ACTION GRANTED
TO ANY GOVERNMENTAL BODY PURSUANT TO THIS ARTICLE, ANY PERSON WHO HAS
BEEN INJURED BY REASON OF A VIOLATION OF THIS ARTICLE MAY BRING AN
ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT, OR AN ACTION
TO RECOVER HIS OR HER ACTUAL DAMAGES, OR BOTH SUCH ACTIONS.
2. THIS ARTICLE SHALL BE ENFORCED BY THE COMMISSIONER, WHO SHALL
PROMULGATE SUCH REGULATIONS AS ARE NECESSARY TO IMPLEMENT AND ADMINISTER
COMPLIANCE. REGULATIONS SHALL INCLUDE PROCEDURES TO RECEIVE, INVESTI-
GATE, AND ATTEMPT TO RESOLVE COMPLAINTS, AND BRING ACTIONS IN ANY COURT
OF COMPETENT JURISDICTION TO RECOVER APPROPRIATE RELIEF FOR AGGRIEVED
EMPLOYEES.
3. NO HEALTHCARE FACILITY SHALL DISCHARGE, DEMOTE, HARASS OR OTHERWISE
TAKE ADVERSE ACTIONS AGAINST ANY INDIVIDUAL BECAUSE SUCH INDIVIDUAL
SEEKS TO ENFORCE THIS ARTICLE, OR TESTIFIES, ASSISTS OR PARTICIPATES IN
ANY MANNER IN AN INVESTIGATION, HEARING OR OTHER PROCEEDING TO ENFORCE
THIS ARTICLE.
4. IN ANY ACTION UNDER THIS ARTICLE IN WHICH AN EMPLOYEE PREVAILS:
(A) THE EMPLOYEE SHALL BE AWARDED MONETARY RELIEF, INCLUDING BACK PAY
IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE EMPLOYEE'S ACTUAL EARN-
INGS AND WHAT THE EMPLOYEE WOULD HAVE EARNED BUT FOR THE HEALTHCARE
FACILITY'S UNLAWFUL PRACTICES, AND AN ADDITIONAL AMOUNT IN PUNITIVE
DAMAGES, AS APPROPRIATE.
A. 1921 6
(B) THE HEALTHCARE FACILITY SHALL BE ENJOINED FROM CONTINUING TO
VIOLATE THE PROVISIONS OF THIS ARTICLE AND MAY BE ORDERED TO TAKE SUCH
ADDITIONAL AFFIRMATIVE STEPS AS ARE NECESSARY TO ENSURE AN END TO THE
UNLAWFUL PRACTICES.
(C) THE HEALTHCARE FACILITY SHALL PAY A REASONABLE ATTORNEYS' FEE,
REASONABLE EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION.
§ 4. This act shall take effect on the first of July next succeeding
the date on which it shall have become a law. Effective immediately the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
to be made and completed on or before such date.