S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4621
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 17, 2023
                                ___________
 
 Introduced by M. of A. STIRPE -- read once and referred to the Committee
   on Health
 
 AN  ACT  to  amend  the  public  health law, in relation to establishing
   temporary health care staffing agencies
 
   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
 211-b to read as follows:
   § 211-B. TEMPORARY HEALTH CARE STAFFING AGENCY. 1.  WHENEVER  USED  IN
 THIS SECTION:
   A.  "TEMPORARY  HEALTH  CARE  STAFFING  AGENCY" MEANS A PERSON THAT IS
 REGULARLY ENGAGED IN THE BUSINESS OF PROVIDING OR PROCURING, WHETHER  AS
 AN  EMPLOYEE OF THE TEMPORARY HEALTH CARE STAFFING AGENCY OR AS AN INDE-
 PENDENT CONTRACTOR, FOR A FEE, HEALTH CARE  PROFESSIONALS  TO  SERVE  AS
 TEMPORARY STAFF FOR HEALTH CARE FACILITIES. TEMPORARY HEALTH CARE STAFF-
 ING  AGENCY  ALSO INCLUDES ANY WEB-BASED OR APP-BASED STAFFING AGENCIES.
 "TEMPORARY HEALTH CARE STAFFING AGENCY" SHALL NOT  INCLUDE  ANY  OF  THE
 FOLLOWING:   (1) A GOVERNMENT AGENCY; OR (2) A HEALTH CARE FACILITY THAT
 PROVIDES LESS THAN FIVE STAFF MEMBERS IN AGGREGATE TO OTHER HEALTH  CARE
 FACILITIES.
   B.  "HEALTH CARE FACILITY" MEANS: (1) A HOSPITAL AS DEFINED IN SECTION
 TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER; (2) A NURSING HOME AS  DEFINED
 BY  SUCH  SECTION; AND (3) A RESIDENTIAL HEALTH CARE FACILITY AS DEFINED
 BY SUCH SECTION.
   C. "HEALTH CARE PROFESSIONAL" MEANS: (1)  ANY  PERSON  LICENSED  UNDER
 ARTICLES  ONE  HUNDRED THIRTY-ONE, ONE HUNDRED THIRTY-ONE-B, ONE HUNDRED
 FIFTY-THREE, ONE HUNDRED  SIXTY,  ONE  HUNDRED  SIXTY-TWO,  ONE  HUNDRED
 SIXTY-THREE, ONE HUNDRED SIXTY-FOUR, ONE HUNDRED SIXTY-FIVE, ONE HUNDRED
 SIXTY-SIX,  ONE  HUNDRED  SIXTY-SEVEN  OR ONE HUNDRED SIXTY-EIGHT OF THE
 EDUCATION LAW; AND (2) ANY PERSON CERTIFIED UNDER ARTICLES  THIRTY-FIVE,
 THIRTY-SIX, THIRTY-SEVEN OR THIRTY-SEVEN-A OF THIS CHAPTER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02114-03-3
              

 A. 4621                             2
 
   D.  "TEMPORARY  EMPLOYEE"  SHALL MEAN A HEALTH CARE PROFESSIONAL HIRED
 THROUGH A TEMPORARY HEALTH CARE STAFFING AGENCY FOR TEMPORARY  PLACEMENT
 AT A HEALTH CARE FACILITY.
   2. A. EACH TEMPORARY HEALTH CARE STAFFING AGENCY SHALL ANNUALLY REGIS-
 TER  WITH  THE  DEPARTMENT  OF  HEALTH. FOR PURPOSES OF THE REGISTRATION
 REQUIREMENT, EACH PHYSICAL LOCATION OF A  HEALTH  CARE  STAFFING  AGENCY
 SHALL SEPARATELY REGISTER WITH THE DEPARTMENT OF HEALTH.
   B. THE COMMISSIONER SHALL ESTABLISH THE REGISTRATION APPLICATION FORMS
 AND  PROCEDURES PURSUANT TO THIS SUBDIVISION. EACH REGISTRATION APPLICA-
 TION SHALL BE ACCOMPANIED BY THE FEE SET FORTH IN PARAGRAPH  C  OF  THIS
 SUBDIVISION AND INCLUDE AT LEAST THE FOLLOWING:
   (1)  (I)  THE NAME AND ADDRESS OF EACH OWNER WITH AN INTEREST OF TWEN-
 TY-FIVE PERCENT OR MORE IN THE TEMPORARY HEALTH  CARE  STAFFING  AGENCY,
 EXCEPT  THAT  IF  THAT INFORMATION DOES NOT RESULT IN A DISCLOSURE OF AT
 LEAST EIGHTY-FIVE PERCENT OF THE OWNERSHIP OF  THE  AGENCY,  ALL  OWNERS
 SHALL BE DISCLOSED;
   (II) IF AN OWNER IS NOT A NATURAL PERSON, THE NAME AND ADDRESS OF EACH
 NATURAL  PERSON  WITH  MORE  THAN A TWENTY-FIVE PERCENT INTEREST IN THAT
 OWNER.
   (2) IF THE TEMPORARY HEALTH CARE STAFFING AGENCY, OR AN  OWNER,  IS  A
 CORPORATION,  A  COPY  OF  THE  ASSOCIATED ARTICLES OF INCORPORATION AND
 CURRENT BYLAWS, AND THE NAME AND ADDRESS OF EACH OFFICER AND DIRECTOR;
   (3) A COPY OF THE TEMPORARY HEALTH CARE STAFFING AGENCY'S POLICIES AND
 PROCEDURES DESIGNED TO ENSURE COMPLIANCE WITH  PARAGRAPHS  B  AND  C  OF
 SUBDIVISION SIX OF THIS SECTION AS WELL AS ANY OTHER PROOF OF COMPLIANCE
 REQUIRED BY THE COMMISSIONER;
   (4) A COPY OF THE TEMPORARY HEALTH CARE STAFFING AGENCY'S POLICIES AND
 PROCEDURES  REGARDING  RECORD  RETENTION  AND  AVAILABILITY  DESIGNED TO
 ENSURE COMPLIANCE WITH PARAGRAPH D OF SUBDIVISION SIX OF THIS SECTION;
   (5) CERTIFICATION THAT THE TEMPORARY HEALTH CARE STAFFING  AGENCY  HAS
 NOT  HAD  A  REGISTRATION  REVOKED  BY THE COMMISSIONER WITHIN THE THREE
 YEARS IMMEDIATELY PRECEDING THE DATE OF THE APPLICATION; AND
   (6) ANY OTHER INFORMATION OR DOCUMENTATION REQUIRED BY THE COMMISSION-
 ER OF HEALTH.
   C. EACH APPLICANT FOR REGISTRATION OF A TEMPORARY HEALTH CARE STAFFING
 AGENCY SHALL PAY AN APPLICATION FEE IN THE AMOUNT OF TWO  HUNDRED  FIFTY
 DOLLARS. SUCH FEE SHALL BE NONREFUNDABLE.
   D.  NO  TEMPORARY  HEALTH  CARE  STAFFING AGENCY SHALL OPERATE IN THIS
 STATE WITHOUT A LICENSE ISSUED OR RENEWED PURSUANT TO THIS SECTION.
   3. THE COMMISSIONER  SHALL  REVIEW  EACH  APPLICATION  RECEIVED  UNDER
 SUBDIVISION  TWO  OF THIS SECTION FOR REGISTRATION OF A TEMPORARY HEALTH
 CARE STAFFING AGENCY. THE COMMISSIONER SHALL REGISTER A TEMPORARY HEALTH
 CARE STAFFING AGENCY IF THE APPLICANT HAS SUBMITTED A COMPLETE  APPLICA-
 TION,  PAID  THE APPLICATION FEE, AND DEMONSTRATED TO THE COMMISSIONER'S
 SATISFACTION THAT THE REQUIREMENTS FOR REGISTRATION AS SET FORTH IN THIS
 SECTION ARE MET.
   4. A. A REGISTRATION ISSUED UNDER THIS SECTION TO A  TEMPORARY  HEALTH
 CARE  STAFFING  AGENCY  IS VALID FOR ONE YEAR FROM THE DATE OF ITS ISSU-
 ANCE, UNLESS EARLIER REVOKED  OR  SUSPENDED,  OR  UNLESS  THE  TEMPORARY
 HEALTH  CARE  STAFFING  AGENCY  IS  SOLD,  OR OWNERSHIP OR MANAGEMENT IS
 TRANSFERRED, AS DESCRIBED IN PARAGRAPH B OF THIS SUBDIVISION.
   B. WHEN A TEMPORARY HEALTH CARE STAFFING AGENCY IS  SOLD,  LEASED,  OR
 OTHERWISE  TRANSFERRED,  INCLUDING A TRANSFER OF OWNERSHIP OR MANAGEMENT
 SUCH THAT FORTY PERCENT OR MORE OF THE OWNERS OR MANAGEMENT OF THE AGEN-
 CY WAS NOT PREVIOUSLY REGISTERED WITH THE COMMISSIONER, THE NEW OWNER OR
 MANAGEMENT SHALL APPLY FOR A  NEW  REGISTRATION  WITHIN  A  TIME  PERIOD
 A. 4621                             3
 
 ESTABLISHED  BY  THE COMMISSIONER. A NEW OWNER OR MANAGEMENT MAY OPERATE
 UNDER THE PRIOR TEMPORARY HEALTH CARE STAFFING AGENCY REGISTRATION UNTIL
 THE NEW  REGISTRATION  IS  ISSUED  ONLY  IF  THE  COMMISSIONER  RECEIVES
 ACKNOWLEDGEMENT  FROM  THE PRIOR AND NEW OWNERS AND MANAGEMENT THAT EACH
 IS JOINTLY AND SEVERALLY LIABLE FOR COMPLIANCE WITH THIS SECTION AND ANY
 RULE OR REGULATION ADOPTED UNDER IT.
   5. BEGINNING ONE YEAR AFTER THE EFFECTIVE DATE  OF  THIS  SECTION,  NO
 TEMPORARY  HEALTH  CARE  STAFFING AGENCY SHALL KNOWINGLY OPERATE AS SUCH
 UNLESS THE AGENCY IS REGISTERED PURSUANT TO THIS SECTION.
   6. EACH TEMPORARY HEALTH CARE STAFFING AGENCY  REGISTERED  UNDER  THIS
 SECTION SHALL DO ALL OF THE FOLLOWING:
   A.  EMPLOY AS AN EMPLOYEE OF THE TEMPORARY HEALTH CARE STAFFING AGENCY
 EACH HEALTH CARE PROFESSIONAL THAT THE AGENCY PROVIDES TO A HEALTH  CARE
 FACILITY;
   B.  VERIFY  AND  MAINTAIN SUPPORTING DOCUMENTATION THAT EACH TEMPORARY
 EMPLOYEE PROVIDED TO A HEALTH CARE FACILITY, AT THE TIME  OF  PLACEMENT,
 MEETS ALL OF THE FOLLOWING:
   (1)  MINIMUM  LICENSING,  TRAINING, AND CONTINUING EDUCATION STANDARDS
 FOR THE POSITION IN WHICH THE EMPLOYEE WILL BE WORKING;
   (2) CRIMINAL RECORDS CHECK REQUIREMENTS OF THE FACILITY; AND
   (3) ANY HEALTH REQUIREMENT OR OTHER FACILITY QUALIFICATION OR REQUIRE-
 MENT;
   C. PROHIBIT ALL TEMPORARY  HEALTH  CARE  STAFFING  AGENCY  STAFF  FROM
 RECRUITING  EMPLOYEES OF THE TEMPORARY HEALTH CARE FACILITY AT WHICH THE
 STAFF IS PLACED AND INSTRUCT ALL STAFF ON THIS PROHIBITION;
   D. MAKE TEMPORARY HEALTH  CARE  STAFFING  AGENCY  RECORDS  IMMEDIATELY
 AVAILABLE TO THE COMMISSIONER OF HEALTH DURING NORMAL BUSINESS HOURS;
   E.  RETAIN TEMPORARY HEALTH CARE STAFFING AGENCY RECORDS FOR A MINIMUM
 OF TEN YEARS OR A LONGER PERIOD IF REQUIRED BY STATE OR FEDERAL LAW;
   F. CARRY PROFESSIONAL  MALPRACTICE  AND  GENERAL  LIABILITY  INSURANCE
 RELATED  TO THE PROVISION OF HEALTH CARE STAFFING SERVICES BY THE TEMPO-
 RARY HEALTH CARE STAFFING  AGENCY  AND  THE  PROVISION  OF  HEALTH  CARE
 SERVICES  BY  THE  AGENCY'S  EMPLOYEES,  IN  AN AMOUNT NOT LESS THAN ONE
 MILLION DOLLARS;
   G. SECURE AND MAINTAIN WORKERS' COMPENSATION  COVERAGE  IN  ACCORDANCE
 WITH THE WORKERS' COMPENSATION LAW;
   H. ASSIGN A TEMPORARY EMPLOYEE TO SETTINGS FOR WHICH SUCH EMPLOYEE HAS
 THE  APPROPRIATE  WORK EXPERIENCE AND BACKGROUND TO PROVIDE THE SERVICES
 REQUIRED BY THE SPECIFIC SETTING; AND
   I. MAINTAIN A WRITTEN AGREEMENT OR  CONTRACT  WITH  EACH  HEALTH  CARE
 FACILITY, WHICH SHALL INCLUDE, AT A MINIMUM:
   (1)  ANY  REQUIREMENT  FOR  MINIMUM  ADVANCE NOTICE IN ORDER TO ASSURE
 PROMPT ARRIVAL OF ASSIGNED HEALTH CARE PERSONNEL;
   (2) PROCEDURES FOR THE  INVESTIGATION  AND  RESOLUTION  OF  COMPLAINTS
 ABOUT  THE  PERFORMANCE OF TEMPORARY HEALTH CARE SERVICES AGENCY PERSON-
 NEL;
   (3) PROCEDURES FOR NOTICE FROM HEALTH CARE FACILITIES  OF  FAILURE  OF
 MEDICAL PERSONNEL TO REPORT TO ASSIGNMENTS AND FOR BACK-UP STAFF IN SUCH
 INSTANCES; AND
   (4) PROCEDURES FOR NOTICE OF ACTUAL OR SUSPECTED ABUSE, THEFT, TAMPER-
 ING OR OTHER DIVERSION OF CONTROLLED SUBSTANCES BY MEDICAL PERSONNEL.
   7.  A  TEMPORARY  HEALTH  CARE STAFFING AGENCY SHALL NOT DO ANY OF THE
 FOLLOWING:
   A. RESTRICT THE EMPLOYMENT OPPORTUNITIES OF ITS  EMPLOYEES,  INCLUDING
 BY REQUIRING ANY OF THE FOLLOWING:
 A. 4621                             4
 
   (1)  THAT  AN  EMPLOYEE PAY MONEY TO TERMINATE EMPLOYMENT OR OTHERWISE
 CEASE TO PROVIDE SERVICES;
   (2) THAT AN EMPLOYEE ENTER INTO A POST-TERMINATION OF SERVICES NONCOM-
 PETE AGREEMENT; OR
   (3) THAT AN EMPLOYEE ACCEPT AN EMPLOYMENT BUYOUT;
   B.  REQUIRE  IN  ANY CONTRACT WITH AN EMPLOYEE OR HEALTH CARE FACILITY
 THE PAYMENT OF LIQUIDATED DAMAGES, EMPLOYMENT  FEES,  OR  OTHER  COMPEN-
 SATION RELATED TO AN EMPLOYEE BEING HIRED AS A PERMANENT EMPLOYEE OF THE
 HEALTH CARE FACILITY;
   C.  RECRUIT,  SOLICIT, OR ENTICE AN EMPLOYEE OF A HEALTH CARE FACILITY
 TO LEAVE THE EMPLOYEE'S EMPLOYMENT UNLESS SUCH EMPLOYMENT OPPORTUNITY IS
 ONE HUNDRED OR MORE MILES AWAY FROM THE  EMPLOYEE'S  CURRENT  EMPLOYMENT
 AND  IS  OFFERED  AT  LEAST  ONE YEAR AFTER THE START OF SUCH EMPLOYEE'S
 CURRENT EMPLOYMENT;
   D. PAY OR MAKE A GIFT TO ANY STAFF OF A HEALTH CARE FACILITY; AND
   E. CONTRACT WITH HEALTH CARE PROFESSIONALS AS INDEPENDENT CONTRACTORS.
   8. THE TOTAL AMOUNT A TEMPORARY HEALTH CARE STAFFING AGENCY CHARGES  A
 HEALTH  CARE  FACILITY FOR ANY EMPLOYEE, INCLUDING FOR ALL WAGES AND ANY
 OTHER FEES OR CHARGES ASSOCIATED WITH THAT EMPLOYEE, WHEN  CONVERTED  TO
 AN  HOURLY  RATE  FOR THE EMPLOYEE BASED ON THE TOTAL HOURS WORKED FOR A
 GIVEN PERIOD, SHALL NOT BE MORE THAN FIFTEEN PERCENT  ABOVE  THE  HOURLY
 RATE THE AGENCY PAYS TO A HEALTH CARE PROFESSIONAL FOR THAT SAME PERIOD.
 THE  HOURLY  RATE  PAID  BY A TEMPORARY HEALTH CARE STAFFING AGENCY TO A
 HEALTH CARE PROFESSIONAL SHALL BE CALCULATED BASED ON THE  GROSS  AMOUNT
 PAID TO A HEALTH CARE PROFESSIONAL BY THE TEMPORARY HEALTH CARE STAFFING
 AGENCY  FOR  SERVICES  PROVIDED IN THE GIVEN PERIOD DIVIDED BY THE TOTAL
 HOURS WORKED FOR THAT PERIOD.
   9. A. EXCEPT AS PROVIDED IN  PARAGRAPH  B  OF  THIS  SUBDIVISION,  THE
 COMMISSIONER  OF  HEALTH,  FOR  REASONS SPECIFIED IN RULES ADOPTED UNDER
 SUBDIVISION ELEVEN OF  THIS  SECTION,  MAY  REVOKE  A  REGISTRATION  FOR
 VIOLATIONS  OF  THIS  SECTION, REFUSE TO ISSUE A REGISTRATION, REFUSE TO
 RENEW OR REINSTATE A REGISTRATION, IMPOSE LIMITATIONS ON A REGISTRATION,
 SUSPEND A REGISTRATION, PLACE A REGISTRATION HOLDER  ON  PROBATION  WITH
 REGARD TO THE REGISTRATION OR OTHERWISE REPRIMAND A REGISTRATION HOLDER.
   B. THE COMMISSIONER SHALL IMPOSE DISCIPLINARY ACTIONS, AS FOLLOWS:
   (1)  IF  A  TEMPORARY  HEALTH  CARE  STAFFING  AGENCY IS FOUND TO HAVE
 VIOLATED ANY PROVISION OF THIS SECTION MORE THAN THREE TIMES IN A REGIS-
 TRATION PERIOD, THE COMMISSIONER SHALL REVOKE THE AGENCY'S REGISTRATION;
 OR
   (2) IF A TEMPORARY HEALTH CARE STAFFING AGENCY FAILS  UPON  A  REQUEST
 MADE  DURING  REGULAR  BUSINESS HOURS TO MAKE THE AGENCY'S RECORDS IMME-
 DIATELY AVAILABLE TO THE COMMISSIONER, THE  COMMISSIONER  SHALL  SUSPEND
 THE AGENCY'S REGISTRATION OR REFUSE TO ISSUE A REGISTRATION.
   10.  A. THE COMMISSIONER SHALL ESTABLISH A SYSTEM FOR THE REPORTING OF
 COMPLAINTS AGAINST A  TEMPORARY  HEALTH  CARE  STAFFING  AGENCY  OR  ITS
 EMPLOYEES. REPORTS MAY BE MADE BY ANY INDIVIDUAL. THE COMMISSIONER SHALL
 INVESTIGATE ALL COMPLAINTS MADE AGAINST A TEMPORARY HEALTH CARE STAFFING
 AGENCY.
   B.  ANY TEMPORARY HEALTH CARE STAFFING AGENCY FOUND TO BE IN VIOLATION
 OF THIS SECTION SHALL BE FINED AS PROVIDED IN  SECTION  TWELVE  OF  THIS
 CHAPTER.
   11.  THE  COMMISSIONER  SHALL  PROMULGATE  ANY  RULE OR REGULATION THE
 COMMISSIONER CONSIDERS NECESSARY TO  IMPLEMENT  THIS  SECTION  INCLUDING
 RULES AND REGULATIONS REGARDING ALL OF THE FOLLOWING:
   A. REGISTRATION APPLICATION FORMS AND PROCEDURES;
 A. 4621                             5
 
   B.  THE TIME PERIOD WITHIN WHICH A NEW OWNER OR MANAGEMENT SHALL APPLY
 FOR A REGISTRATION WHEN A TEMPORARY HEALTH CARE STAFFING AGENCY IS SOLD,
 LEASED, OR OTHERWISE TRANSFERRED;
   C. REGISTRATION RENEWAL FORMS AND PROCEDURES; AND
   D.  REASONS FOR WHICH THE COMMISSIONER MAY IMPOSE DISCIPLINARY ACTIONS
 UNDER SUBDIVISION NINE OF THIS SECTION.
   12. ALL REGISTRATION FEES AND FINES COLLECTED PURSUANT TO THIS SECTION
 SHALL BE DEPOSITED IN THE GENERAL FUND AND  SHALL  BE  USED  SOLELY  FOR
 PURPOSES  OF  ADMINISTERING  AND  ENFORCING  THIS  SECTION AND THE RULES
 ADOPTED UNDER IT.
   13. AN EMPLOYEE OF A TEMPORARY HEALTH  CARE  STAFFING  AGENCY  OR  ANY
 HEALTH  CARE  FACILITY  MAY ASSERT A CAUSE OF ACTION AGAINST A TEMPORARY
 HEALTH CARE STAFFING AGENCY FOR A VIOLATION OF THIS SECTION IN THE COUN-
 TY COURT WHERE SUCH  VIOLATION  HAS  OCCURRED.  IF  THE  COURT  FINDS  A
 VIOLATION,  IT  SHALL  AWARD  THE  PLAINTIFF  ACTUAL DAMAGES, COSTS, AND
 REASONABLE ATTORNEY'S FEES.
   14. IF A DECLARED STATE OF EMERGENCY IS IN EFFECT THE TOTAL  AMOUNT  A
 TEMPORARY HEALTH CARE STAFFING AGENCY CHARGES A HEALTH CARE FACILITY FOR
 ANY  EMPLOYEE,  INCLUDING  FOR  ALL  WAGES AND ANY OTHER FEES OR CHARGES
 ASSOCIATED WITH THAT EMPLOYEE, WHEN CONVERTED TO AN HOURLY RATE FOR  THE
 EMPLOYEE  BASED  ON THE TOTAL HOURS WORKED FOR A GIVEN PERIOD, SHALL NOT
 BE MORE THAN THIRTY PERCENT ABOVE THE HOURLY RATE THE HEALTH CARE FACIL-
 ITY PAYS TO A HEALTH CARE PROFESSIONAL OF THE  SAME  QUALIFICATIONS  FOR
 THAT SAME PERIOD.
   §  2.   Severability. If any clause, sentence, paragraph, subdivision,
 section or part of this act shall be adjudged by any court of  competent
 jurisdiction  to  be invalid, such judgment shall not affect, impair, or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph, subdivision, section or part thereof
 directly involved in the controversy in which such judgment  shall  have
 been rendered. It is hereby declared to be the intent of the legislature
 that  this  act  would have been enacted even if such invalid provisions
 had not been included herein.
   § 3. This act shall take effect on the ninetieth day  after  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 effective date.