§ 6908 — Exempt persons

§ 6908. Exempt persons. 1. This article shall not be construed:\n a. As prohibiting (i) the domestic care of the sick, disabled or\ninjured by any family member, household member or friend, or person\nemployed primarily in a domestic capacity who does not hold himself or\nherself out, or accept employment as a person licensed to practice\nnursing under the provision of this article; provided that if such\nperson is remunerated, the person does not hold himself or herself out\nas one who accepts employment for performing such care; or the\nadministration of medications or treatment by child day care providers\nor employees or caregivers of child day care programs where such\nproviders, employees or caregivers are acting under the direction and\nauthority of a parent of a child, legal guardian, legal custodian, or an\nadult in whose care a child has been entrusted and who has been\nauthorized by the parent to consent to any health care for the child and\nin compliance with the regulations of the office of children and family\nservices pertaining to the administration of medications and treatment;\nor\n (ii) any person from the domestic administration of family remedies;\nor\n (iii) the providing of care by a person acting in the place of a\nperson exempt under clause (i) of this paragraph, but who does hold\nhimself or herself out as one who accepts employment for performing such\ncare, where nursing services are under the instruction of a licensed\nnurse, or under the instruction of a patient or family or household\nmember determined by a registered professional nurse to be\nself-directing and capable of providing such instruction, and services\nare provided under section three hundred sixty-five-f of the social\nservices law; or\n (iv) the furnishing of nursing assistance in case of an emergency; or\n (v) tasks provided by a direct support staff in programs certified or\napproved by the office for people with developmental disabilities, when\nperformed under the supervision of a registered professional nurse and\npursuant to a memorandum of understanding between the office for people\nwith developmental disabilities and the department, in accordance with\nand pursuant to an authorized practitioner's ordered care, provided\nthat: (1) a registered professional nurse determines, in his or her\nprofessional judgment, which tasks are to be performed based upon the\ncomplexity of the tasks, the skill and experience of the direct support\nstaff, and the health status of the individual being cared for; (2) only\na direct support staff who has completed training as required by the\ncommissioner of the office for people with developmental disabilities\nmay perform tasks pursuant to this subparagraph; (3) appropriate\nprotocols shall be established to ensure safe administration of\nmedications; (4) a direct support staff shall not assess the medication\nneeds of an individual; (5) adequate nursing supervision is provided,\nincluding training and periodic inspection of performance of the tasks.\nThe amount and type of nursing supervision shall be determined by the\nregistered professional nurse responsible for supervising such task\nbased upon the complexity of the tasks, the skill and experience of the\ndirect support staff, and the health status of the individual being\ncared for; (6) a direct support staff shall not be authorized to perform\nany tasks or activities pursuant to this subparagraph that are outside\nthe scope of practice of a licensed practical nurse; (7) a direct\nsupport staff shall not represent himself or herself, or accept\nemployment, as a person licensed to practice nursing under the\nprovisions of this article; (8) direct support staff providing\nmedication administration, tube feeding, or diabetic care shall be\nseparately certified, and shall be recertified on an annual basis; (9)\nthe registered professional nurse shall ensure that there is a consumer\nspecific medication sheet for each medication that is administered; and\n(10) appropriate staffing ratios shall be determined by the office for\npeople with developmental disabilities and the department to ensure\nadequate nursing supervision. No direct support staff shall perform\ntasks under this subparagraph until the office for people with\ndevelopmental disabilities and the department have entered into a\nmemorandum of understanding to effectuate the provisions of this\nsubparagraph. The office for people with developmental disabilities\nshall complete a criminal background check pursuant to section 16.33 of\nthe mental hygiene law and an agency background check pursuant to\nsection 16.34 of the mental hygiene law on the direct support staff\nprior to the commencement of any provision of service provided under\nthis subparagraph if such direct support staff is a new hire.\nIndividuals providing supervision or direct support tasks pursuant to\nthis subparagraph shall have protection pursuant to sections seven\nhundred forty and seven hundred forty-one of the labor law, where\napplicable;\n b. As including services given by attendants in institutions under the\njurisdiction of or subject to the visitation of the state department of\nmental hygiene if adequate medical and nursing supervision is provided;\n c. As prohibiting such performance of nursing service by students\nenrolled in registered schools or programs as may be incidental to their\ncourse of study;\n d. As prohibiting or preventing the practice of nursing in this state\nby any legally qualified nurse or practical nurse of another state,\nprovince, or country whose engagement requires him or her to accompany\nand care for a patient temporarily residing in this state during the\nperiod of such engagement provided such person does not represent or\nhold himself or herself out as a nurse or practical nurse registered to\npractice in this state;\n e. As prohibiting or preventing the practice of nursing in this state\nduring an emergency or disaster by any legally qualified nurse or\npractical nurse of another state, province, or country who may be\nrecruited by the American National Red Cross or pursuant to authority\nvested in the state civil defense commission for such emergency or\ndisaster service, provided such person does not represent or hold\nhimself or herself out as a nurse or practical nurse registered to\npractice in this state;\n f. As prohibiting or preventing the practice of nursing in this state,\nin obedience to the requirements of the laws of the United States, by\nany commissioned nurse officer in the armed forces of the United States\nor by any nurse employed in the United States veterans administration or\nUnited States public health service while engaged in the performance of\nthe actual duties prescribed for him or her under the United States\nstatutes, provided such person does not represent or hold himself or\nherself out as a nurse registered to practice in this state; or\n g. As prohibiting the care of the sick when done in connection with\nthe practice of the religious tenets of any church.\n h. As prohibiting the provision of psychotherapy as defined in\nsubdivision two of section eighty-four hundred one of this title to the\nextent permissible within the scope of practice of nursing as defined in\nthis title, by any not-for-profit corporation or education corporation\nproviding services within the state and operating under a waiver\npursuant to section sixty-five hundred three-a of this title, provided\nthat such entities offering such psychotherapy services shall only\nprovide such services through an individual appropriately licensed or\notherwise authorized to provide such services or a professional entity\nauthorized by law to provide such services.\n * 2. This article shall not be construed as prohibiting advanced tasks\nprovided by an advanced home health aide in accordance with regulations\ndeveloped by the commissioner, in consultation with the commissioner of\nhealth. At a minimum, such regulations shall:\n a. specify the advanced tasks that may be performed by advanced home\nhealth aides pursuant to this subdivision. Such tasks shall include the\nadministration of medications which are routine and prefilled or\notherwise packaged in a manner that promotes relative ease of\nadministration, provided that administration of medications by\ninjection, sterile procedures, and central line maintenance shall be\nprohibited. Provided, however, such prohibition shall not apply to\ninjections of insulin or other injections for diabetes care, to\ninjections of low molecular weight heparin, and to pre-filled\nauto-injections of naloxone and epinephrine for emergency purposes, and\nprovided, further, that entities employing advanced home health aides\npursuant to this subdivision shall establish a systematic approach to\naddress drug diversion;\n b. provide that advanced tasks performed by advanced home health aides\nmay be performed only under the direct supervision of a registered\nprofessional nurse licensed in New York state, as set forth in this\nsubdivision and subdivision eight of section sixty-nine hundred nine of\nthis article, where such nurse is employed by a home care services\nagency licensed or certified pursuant to article thirty-six of the\npublic health law, a hospice program certified pursuant to article forty\nof the public health law, or an enhanced assisted living residence\nlicensed pursuant to article seven of the social services law and\ncertified pursuant to article forty-six-B of the public health law. Such\nnursing supervision shall:\n (i) include training and periodic assessment of the performance of\nadvanced tasks;\n (ii) be determined by the registered professional nurse responsible\nfor supervising such advanced tasks based upon the complexity of such\nadvanced tasks, the skill and experience of the advanced home health\naide, and the health status of the individual for whom such advanced\ntasks are being performed;\n (iii) include a comprehensive initial and thereafter regular and\nongoing assessment of the individual's needs;\n (iv) include as a requirement that the supervising registered\nprofessional nurse shall visit individuals receiving services for the\npurpose of supervising the services provided by advanced home health\naides no less than once every two weeks and include as a requirement\nthat a registered professional nurse shall be available by telephone to\nthe advanced home health aide twenty-four hours a day, seven days a\nweek, provided that a registered professional nurse shall be available\nto visit an individual receiving services as necessary to protect the\nhealth and safety of such individual; and\n (v) as shall be specified by the commissioner, be provided in a manner\nthat takes into account individual care needs, case mix complexity and\ngeographic considerations and provide that the number of individuals\nserved by a supervising registered professional nurse is reasonable and\nprudent.\n c. establish a process by which a registered professional nurse may\nassign advanced tasks to an advanced home health aide. Such process\nshall include, but not be limited to:\n (i) allowing assignment of advanced tasks to an advanced home health\naide only where such advanced home health aide has demonstrated to the\nsatisfaction of the supervising registered professional nurse competency\nin every advanced task that such advanced home health aide is authorized\nto perform, a willingness to perform such advanced tasks, and the\nability to effectively and efficiently communicate with the individual\nreceiving services and understand such individual's needs;\n (ii) prohibiting assignment of advanced tasks to an advanced home\nhealth aide if the individual receiving services declines to be served\nby an advanced home health aide;\n (iii) authorizing the supervising registered professional nurse to\nrevoke any assigned advanced task from an advanced home health aide for\nany reason; and\n (iv) authorizing multiple registered professional nurses to jointly\nagree to assign advanced tasks to an advanced home health aide, provided\nfurther that only one registered professional nurse shall be required to\ndetermine if the advanced home health aide has demonstrated competency\nin the advanced task to be performed;\n d. provide that advanced tasks may be performed only in accordance\nwith and pursuant to an authorized health practitioner's ordered care;\n e. provide that only a certified home health aide may perform advanced\ntasks as an advanced home health aide when such aide has:\n (i) at least one year of experience providing either home health or\npersonal care services, or a combination of the same;\n (ii) completed the requisite training and demonstrated competencies of\nan advanced home health aide as determined by the commissioner in\nconsultation with the commissioner of health;\n (iii) successfully completed competency examinations satisfactory to\nthe commissioner in consultation with the commissioner of health; and\n (iv) meets other appropriate qualifications as determined by the\ncommissioner in consultation with the commissioner of health;\n f. provide that only an individual who is listed in the home care\nservices registry maintained by the department of health pursuant to\nsection thirty-six hundred thirteen of the public health law as having\nsatisfied all applicable training requirements and having passed the\napplicable competency examinations and who meets other requirements as\nset forth in regulations issued by the commissioner of health pursuant\nto subdivision seventeen of section thirty-six hundred two of the public\nhealth law may perform advanced tasks pursuant to this subdivision and\nmay hold himself or herself out as an advanced home health aide;\n g. establish minimum standards of training for the performance of\nadvanced tasks by advanced home health aides, including didactic\ntraining, clinical training, and a supervised clinical practicum with\nstandards set forth by the commissioner of health;\n h. provide that advanced home health aides shall receive case-specific\ntraining on the advanced tasks to be assigned by the supervising nurse,\nprovided that additional training shall take place whenever additional\nadvanced tasks are assigned;\n i. prohibit an advanced home health aide from holding himself or\nherself out, or accepting employment as, a person licensed to practice\nnursing under the provisions of this article;\n j. provide that an advanced home health aide is not required nor\npermitted to assess the medication or medical needs of an individual;\n k. provide that an advanced home health aide shall not be authorized\nto perform any advanced tasks or activities pursuant to this subdivision\nthat are outside the scope of practice of a licensed practical nurse or\nany advanced tasks that have not been appropriately assigned by the\nsupervising registered professional nurse;\n l. provide that an advanced home health aide shall document all\nadvanced tasks provided to an individual, including medication\nadministration to each individual through the use of a medication\nadministration record; and\n m. provide that the supervising registered professional nurse shall\nretain the discretion to decide whether to assign advanced tasks to\nadvanced home health aides under this program and shall not be subject\nto coercion, retaliation, or the threat of retaliation; in developing\nsuch regulations, the commissioner shall take into account the\nrecommendations of a workgroup of stakeholders convened by the\ncommissioner of health in consultation with the commissioner for the\npurpose of providing guidance on the foregoing.\n * NB Repealed March 31, 2029\n