S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7704--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 6, 2023
                                ___________
 
 Introduced  by M. of A. McMAHON -- read once and referred to the Commit-
   tee on Higher Education -- recommitted  to  the  Committee  on  Higher
   Education  in  accordance  with  Assembly  Rule 3, sec. 2 -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee

 AN ACT to  amend  the  education  law,  in  relation  to  expanding  the
   description  of  certain services which are not prohibited by statutes
   governing the practice of nursing
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subparagraph  (v)  of  paragraph  (a) of subdivision 1 of
 section 6908 of the education law is renumbered subparagraph (vi) and  a
 new subparagraph (v) is added to read as follows:
   (V)  TASKS  PROVIDED  BY  A DIRECT SUPPORT STAFF IN NON-FACILITY BASED
 PROGRAMS CERTIFIED OR APPROVED BY THE OFFICE FOR  PEOPLE  WITH  DEVELOP-
 MENTAL  DISABILITIES,  WHEN PERFORMED UNDER THE INSTRUCTION OF A SERVICE
 RECIPIENT, FAMILY, OR HOUSEHOLD MEMBER AND PURSUANT TO A  MEMORANDUM  OF
 UNDERSTANDING BETWEEN THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILI-
 TIES  AND  THE DEPARTMENT, IN ACCORDANCE WITH AND PURSUANT TO AN AUTHOR-
 IZED PRACTITIONER'S ORDERED CARE, PROVIDED THAT:
   (1) A REGISTERED PROFESSIONAL NURSE DETERMINES, IN THEIR  PROFESSIONAL
 JUDGMENT, WHICH TASKS ARE TO BE PERFORMED BASED UPON:
   (A) THE COMPLEXITY OF THE TASKS;
   (B) THE SKILL AND EXPERIENCE OF THE DIRECT SUPPORT STAFF;
   (C)  THE  HEALTH STATUS AND SPECIFIC CARE NEEDS OF THE SERVICE RECIPI-
 ENT; AND
   (D) THE SERVICE RECIPIENT, FAMILY, OR  HOUSEHOLD  MEMBER  IS  ABLE  TO
 EFFECTIVELY  AND  EFFICIENTLY  COMMUNICATE WITH THE DIRECT SUPPORT STAFF
 PROVIDING TASKS;

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11654-05-4
 A. 7704--A                          2
 
              

   (2) ONLY A  DIRECT  SUPPORT  STAFF  THAT  HAS  COMPLETED  TRAINING  AS
 REQUIRED BY THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
 DISABILITIES MAY PERFORM TASKS PURSUANT TO THIS SUBPARAGRAPH;
   (3)  ONLY  A  SERVICE  RECIPIENT,  FAMILY, OR HOUSEHOLD MEMBER WHO HAS
 COMPLETED TRAINING AS REQUIRED BY THE COMMISSIONER  OF  THE  OFFICE  FOR
 PEOPLE  WITH  DEVELOPMENTAL  DISABILITIES  MAY INSTRUCT A DIRECT SUPPORT
 STAFF PURSUANT TO THIS SUBPARAGRAPH, PROVIDED THAT SUCH  COURSE  MAY  BE
 SATISFACTORILY  COMPLETED THROUGH DISTANCE LEARNING METHODS WHICH EVINCE
 THAT ALL PARTICIPANTS ARE IN ATTENDANCE FOR THE DURATION OF  THE  COURSE
 AND ARE ABLE TO ASK QUESTIONS OF THE INSTRUCTOR;
   (4) APPROPRIATE PROTOCOLS SHALL BE ESTABLISHED TO ENSURE SAFE ADMINIS-
 TRATION OF MEDICATIONS;
   (5) A DIRECT SUPPORT STAFF SHALL NOT ASSESS THE MEDICATION NEEDS OF AN
 INDIVIDUAL;
   (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 THEMSELVES, OR ACCEPT
 EMPLOYMENT,  AS  A  PERSON  LICENSED  TO  PRACTICE  NURSING  UNDER   THE
 PROVISIONS OF THIS ARTICLE;
   (8)  A  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  ADMINIS-
 TERED;
   (10) IN THE EVENT THAT A REGISTERED PROFESSIONAL NURSE DETERMINES THAT
 THE  SERVICE  RECIPIENT,  FAMILY,  OR HOUSEHOLD MEMBER IS NOT CAPABLE OF
 PROVIDING SUCH INSTRUCTION, A DIRECT SUPPORT  STAFF  SHALL  NOT  PROVIDE
 TASKS  PURSUANT  TO  THIS SUBPARAGRAPH. IN THE EVENT OF ANY DISAGREEMENT
 BETWEEN A REGISTERED PROFESSIONAL NURSE AND A SERVICE RECIPIENT, FAMILY,
 OR HOUSEHOLD MEMBER  REGARDING  SUCH  CAPABILITY,  THEN  THE  REGISTERED
 PROFESSIONAL NURSE'S DETERMINATION SHALL PREVAIL;
   (11)  A  DIRECT  SUPPORT  STAFF  SHALL  NOT PROVIDE ANY TASKS UNLESS A
 REGISTERED PROFESSIONAL NURSE HAS  DETERMINED  THAT  SUCH  TASK  MAY  BE
 PERFORMED;
   (12)  ADEQUATE NURSING SUPERVISION IS PROVIDED, INCLUDING TRAINING AND
 PERIODIC INSPECTION OF PERFORMANCE OF THE TASKS, PROVIDED HOWEVER,  THAT
 THE  SUPERVISING  REGISTERED  PROFESSIONAL NURSE SHALL VISIT INDIVIDUALS
 RECEIVING SERVICES NO LESS THAN ONCE EVERY TWO WEEKS AND SHALL BE AVAIL-
 ABLE BY TELEPHONE TO THE DIRECT SUPPORT STAFF TWENTY-FOUR HOURS  A  DAY,
 SEVEN  DAYS  A  WEEK,  PROVIDED  FURTHER, THAT A REGISTERED PROFESSIONAL
 NURSE SHALL BE AVAILABLE TO VISIT THE SERVICE RECIPIENT AS NECESSARY  TO
 PROTECT THE HEALTH AND SAFETY OF SUCH RECIPIENT;
   (13)  NO  DIRECT SUPPORT STAFF SHALL PERFORM TASKS UNDER THIS SUBPARA-
 GRAPH UNTIL THE OFFICE FOR PEOPLE WITH  DEVELOPMENTAL  DISABILITIES  AND
 THE DEPARTMENT HAVE ENTERED INTO A MEMORANDUM OF UNDERSTANDING TO EFFEC-
 TUATE  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 BACK-
 GROUND 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. LICENSED  REGISTERED  PROFESSIONAL  NURSES  AND  INDIVIDUALS
 PROVIDING  DIRECT SUPPORT TASKS PURSUANT TO THIS SUBPARAGRAPH SHALL HAVE
 A. 7704--A                          3
 
 PROTECTION PURSUANT TO SECTIONS SEVEN HUNDRED FORTY  AND  SEVEN  HUNDRED
 FORTY-ONE OF THE LABOR LAW, WHERE APPLICABLE; OR
   §  2.  This  act shall take effect eighteen months after it shall have
 become a law, and shall expire and be  deemed  repealed  July  1,  2029.
 Effective immediately, the addition, amendment and/or repeal of any rule
 or regulation necessary for the implementation of this act on its effec-
 tive  date  are  authorized  to  be made and completed on or before such
 effective date.