§ 6908. Exempt persons. 1. This article shall not be construed:

a. As prohibiting (i) the domestic care of the sick, disabled or
injured by any family member, household member or friend, or person
employed primarily in a domestic capacity who does not hold himself or
herself out, or accept employment as a person licensed to practice
nursing under the provision of this article; provided that if such
person is remunerated, the person does not hold himself or herself out
as one who accepts employment for performing such care; or the
administration of medications or treatment by child day care providers
or employees or caregivers of child day care programs where such
providers, employees or caregivers are acting under the direction and
authority of a parent of a child, legal guardian, legal custodian, or an
adult in whose care a child has been entrusted and who has been
authorized by the parent to consent to any health care for the child and
in compliance with the regulations of the office of children and family
services pertaining to the administration of medications and treatment;
or

(ii) any person from the domestic administration of family remedies;
or

(iii) the providing of care by a person acting in the place of a
person exempt under clause (i) of this paragraph, but who does hold
himself or herself out as one who accepts employment for performing such
care, where nursing services are under the instruction of a licensed
nurse, or under the instruction of a patient or family or household
member determined by a registered professional nurse to be
self-directing and capable of providing such instruction, and services
are provided under section three hundred sixty-five-f of the social
services law; or

(iv) the furnishing of nursing assistance in case of an emergency; or

(v) tasks provided by a direct support staff in programs certified or
approved by the office for people with developmental disabilities, when
performed under the supervision of a registered professional nurse and
pursuant to a memorandum of understanding between the office for people
with developmental disabilities and the department, in accordance with
and pursuant to an authorized practitioner's ordered care, provided
that: (1) a registered professional nurse determines, in his or her
professional judgment, which tasks are to be performed based upon the
complexity of the tasks, the skill and experience of the direct support
staff, and the health status of the individual being cared for; (2) only
a direct support staff who has completed training as required by the
commissioner of the office for people with developmental disabilities
may perform tasks pursuant to this subparagraph; (3) appropriate
protocols shall be established to ensure safe administration of
medications; (4) a direct support staff shall not assess the medication
needs of an individual; (5) adequate nursing supervision is provided,
including training and periodic inspection of performance of the tasks.
The amount and type of nursing supervision shall be determined by the
registered professional nurse responsible for supervising such task
based upon the complexity of the tasks, the skill and experience of the
direct support staff, and the health status of the individual being
cared for; (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 himself or herself, or accept
employment, as a person licensed to practice nursing under the
provisions of this article; (8) 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 administered; and
(10) appropriate staffing ratios shall be determined by the office for
people with developmental disabilities and the department to ensure
adequate nursing supervision. No direct support staff shall perform
tasks under this subparagraph until the office for people with
developmental disabilities and the department have entered into a
memorandum of understanding to effectuate 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 background 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.
Individuals providing supervision or direct support tasks pursuant to
this subparagraph shall have protection pursuant to sections seven
hundred forty and seven hundred forty-one of the labor law, where
applicable;

b. As including services given by attendants in institutions under the
jurisdiction of or subject to the visitation of the state department of
mental hygiene if adequate medical and nursing supervision is provided;

c. As prohibiting such performance of nursing service by students
enrolled in registered schools or programs as may be incidental to their
course of study;

d. As prohibiting or preventing the practice of nursing in this state
by any legally qualified nurse or practical nurse of another state,
province, or country whose engagement requires him or her to accompany
and care for a patient temporarily residing in this state during the
period of such engagement provided such person does not represent or
hold himself or herself out as a nurse or practical nurse registered to
practice in this state;

e. As prohibiting or preventing the practice of nursing in this state
during an emergency or disaster by any legally qualified nurse or
practical nurse of another state, province, or country who may be
recruited by the American National Red Cross or pursuant to authority
vested in the state civil defense commission for such emergency or
disaster service, provided such person does not represent or hold
himself or herself out as a nurse or practical nurse registered to
practice in this state;

f. As prohibiting or preventing the practice of nursing in this state,
in obedience to the requirements of the laws of the United States, by
any commissioned nurse officer in the armed forces of the United States
or by any nurse employed in the United States veterans administration or
United States public health service while engaged in the performance of
the actual duties prescribed for him or her under the United States
statutes, provided such person does not represent or hold himself or
herself out as a nurse registered to practice in this state; or

g. As prohibiting the care of the sick when done in connection with
the practice of the religious tenets of any church.

h. As prohibiting the provision of psychotherapy as defined in
subdivision two of section eighty-four hundred one of this title to the
extent permissible within the scope of practice of nursing as defined in
this title, by any not-for-profit corporation or education corporation
providing services within the state and operating under a waiver
pursuant to section sixty-five hundred three-a of this title, provided
that such entities offering such psychotherapy services shall only
provide such services through an individual appropriately licensed or
otherwise authorized to provide such services or a professional entity
authorized by law to provide such services.

* 2. This article shall not be construed as prohibiting advanced tasks
provided by an advanced home health aide in accordance with regulations
developed by the commissioner, in consultation with the commissioner of
health. At a minimum, such regulations shall:

a. specify the advanced tasks that may be performed by advanced home
health aides pursuant to this subdivision. Such tasks shall include the
administration of medications which are routine and prefilled or
otherwise packaged in a manner that promotes relative ease of
administration, provided that administration of medications by
injection, sterile procedures, and central line maintenance shall be
prohibited. Provided, however, such prohibition shall not apply to
injections of insulin or other injections for diabetes care, to
injections of low molecular weight heparin, and to pre-filled
auto-injections of naloxone and epinephrine for emergency purposes, and
provided, further, that entities employing advanced home health aides
pursuant to this subdivision shall establish a systematic approach to
address drug diversion;

b. provide that advanced tasks performed by advanced home health aides
may be performed only under the direct supervision of a registered
professional nurse licensed in New York state, as set forth in this
subdivision and subdivision eight of section sixty-nine hundred nine of
this article, where such nurse is employed by a home care services
agency licensed or certified pursuant to article thirty-six of the
public health law, a hospice program certified pursuant to article forty
of the public health law, or an enhanced assisted living residence
licensed pursuant to article seven of the social services law and
certified pursuant to article forty-six-B of the public health law. Such
nursing supervision shall:

(i) include training and periodic assessment of the performance of
advanced tasks;

(ii) be determined by the registered professional nurse responsible
for supervising such advanced tasks based upon the complexity of such
advanced tasks, the skill and experience of the advanced home health
aide, and the health status of the individual for whom such advanced
tasks are being performed;

(iii) include a comprehensive initial and thereafter regular and
ongoing assessment of the individual's needs;

(iv) include as a requirement that the supervising registered
professional nurse shall visit individuals receiving services for the
purpose of supervising the services provided by advanced home health
aides no less than once every two weeks and include as a requirement
that a registered professional nurse shall be available by telephone to
the advanced home health aide twenty-four hours a day, seven days a
week, provided that a registered professional nurse shall be available
to visit an individual receiving services as necessary to protect the
health and safety of such individual; and

(v) as shall be specified by the commissioner, be provided in a manner
that takes into account individual care needs, case mix complexity and
geographic considerations and provide that the number of individuals
served by a supervising registered professional nurse is reasonable and
prudent.

c. establish a process by which a registered professional nurse may
assign advanced tasks to an advanced home health aide. Such process
shall include, but not be limited to:

(i) allowing assignment of advanced tasks to an advanced home health
aide only where such advanced home health aide has demonstrated to the
satisfaction of the supervising registered professional nurse competency
in every advanced task that such advanced home health aide is authorized
to perform, a willingness to perform such advanced tasks, and the
ability to effectively and efficiently communicate with the individual
receiving services and understand such individual's needs;

(ii) prohibiting assignment of advanced tasks to an advanced home
health aide if the individual receiving services declines to be served
by an advanced home health aide;

(iii) authorizing the supervising registered professional nurse to
revoke any assigned advanced task from an advanced home health aide for
any reason; and

(iv) authorizing multiple registered professional nurses to jointly
agree to assign advanced tasks to an advanced home health aide, provided
further that only one registered professional nurse shall be required to
determine if the advanced home health aide has demonstrated competency
in the advanced task to be performed;

d. provide that advanced tasks may be performed only in accordance
with and pursuant to an authorized health practitioner's ordered care;

e. provide that only a certified home health aide may perform advanced
tasks as an advanced home health aide when such aide has:

(i) at least one year of experience providing either home health or
personal care services, or a combination of the same;

(ii) completed the requisite training and demonstrated competencies of
an advanced home health aide as determined by the commissioner in
consultation with the commissioner of health;

(iii) successfully completed competency examinations satisfactory to
the commissioner in consultation with the commissioner of health; and

(iv) meets other appropriate qualifications as determined by the
commissioner in consultation with the commissioner of health;

f. provide that only an individual who is listed in the home care
services registry maintained by the department of health pursuant to
section thirty-six hundred thirteen of the public health law as having
satisfied all applicable training requirements and having passed the
applicable competency examinations and who meets other requirements as
set forth in regulations issued by the commissioner of health pursuant
to subdivision seventeen of section thirty-six hundred two of the public
health law may perform advanced tasks pursuant to this subdivision and
may hold himself or herself out as an advanced home health aide;

g. establish minimum standards of training for the performance of
advanced tasks by advanced home health aides, including didactic
training, clinical training, and a supervised clinical practicum with
standards set forth by the commissioner of health;

h. provide that advanced home health aides shall receive case-specific
training on the advanced tasks to be assigned by the supervising nurse,
provided that additional training shall take place whenever additional
advanced tasks are assigned;

i. prohibit an advanced home health aide from holding himself or
herself out, or accepting employment as, a person licensed to practice
nursing under the provisions of this article;

j. provide that an advanced home health aide is not required nor
permitted to assess the medication or medical needs of an individual;

k. provide that an advanced home health aide shall not be authorized
to perform any advanced tasks or activities pursuant to this subdivision
that are outside the scope of practice of a licensed practical nurse or
any advanced tasks that have not been appropriately assigned by the
supervising registered professional nurse;

l. provide that an advanced home health aide shall document all
advanced tasks provided to an individual, including medication
administration to each individual through the use of a medication
administration record; and

m. provide that the supervising registered professional nurse shall
retain the discretion to decide whether to assign advanced tasks to
advanced home health aides under this program and shall not be subject
to coercion, retaliation, or the threat of retaliation; in developing
such regulations, the commissioner shall take into account the
recommendations of a workgroup of stakeholders convened by the
commissioner of health in consultation with the commissioner for the
purpose of providing guidance on the foregoing.

* NB Repealed March 31, 2029