§ 2805-T — Clinical staffing committees and disclosure of nursing quality indicators

§ 2805-t. Clinical staffing committees and disclosure of nursing\nquality indicators. 1. Legislative intent. The legislature hereby finds\nand declares:\n (a) Research demonstrates that nurses play a critical role in\nimproving patient safety and quality of care;\n (b) Appropriate staffing of general hospital personnel, including\nregistered nurses available for patient care, assists in reducing\nerrors, complications and adverse patient care events, improves staff\nsafety and satisfaction, and reduces incidences of workplace injuries;\n (c) Health care professional, technical, and support staff comprise\nvital components of the patient care team, bringing their particular\nskills and services to ensuring quality patient care;\n (d) Ensuring sufficient staffing of general hospital personnel,\nincluding registered nurses, is an urgent public policy priority in\norder to protect patients and support greater retention of registered\nnurses and safer working conditions; and\n (e) It is the public policy of the state to promote evidence-based\nnurse staffing standards and increase transparency of health care data\nand decision making based on the data.\n 2. Clinical staffing committee. (a) Each general hospital licensed\npursuant to this article shall establish and maintain a clinical\nstaffing committee, either by creating a new committee or assigning the\nfunctions of the clinical staffing committee to an existing committee,\nno later than January first, two thousand twenty-two.\n (b) Where a collective bargaining agreement provides for a staffing\ncommittee, the required functions of the clinical staffing committee\nestablished pursuant to this section shall be incorporated into that\ncommittee. Any staffing or non-staffing committees established by a\ncollective bargaining agreement, shall continue to function in\naccordance with the terms of the agreement, and the clinical staffing\ncommittee established by this section shall not limit or otherwise\nsupplant the collective bargaining agreement.\n (c) At least one-half of the members of the clinical staffing\ncommittee shall be registered nurses, licensed practical nurses, and\nancillary members of the frontline team currently providing or\nsupporting direct patient care and up to one-half of the members shall\nbe selected by the general hospital administration and shall include but\nnot be limited to the chief financial officer, the chief nursing\nofficer, and patient care unit directors or managers or their designees.\nThe selection of the registered nurses, licensed practical nurses, and\nancillary frontline team members of the committee shall be according to\ntheir respective collective bargaining agreements if there is one in\neffect at the general hospital for their bargaining unit. If there is no\napplicable collective bargaining agreement, the members of the clinical\nstaffing committee who are registered nurses, licensed practical nurses,\nand ancillary members providing direct patient care shall be selected by\ntheir peers. Ancillary members of the frontline team on the committee\nshall include but are not limited to patient care technicians, certified\nnursing assistants, other non-licensed staff assisting with nursing or\nclerical tasks, and unit clerks.\n 3. Employee participation. Participation in the clinical staffing\ncommittee by a general hospital employee shall be on scheduled work time\nand compensated at the appropriate rate of pay. Clinical staffing\ncommittee members shall be fully relieved of all other work duties\nduring meetings of the committee and shall not have work duties added or\ndisplaced to other times as a result of their committee\nresponsibilities.\n 4. Primary responsibilities. Primary responsibilities of the clinical\nstaffing committee shall include the following functions:\n (a) Development and oversight of implementation of an annual clinical\nstaffing plan. The clinical staffing plan shall include specific\nstaffing for each patient care unit and work shift and shall be based on\nthe needs of patients. Staffing plans shall include specific guidelines\nor ratios, matrices, or grids indicating how many patients are assigned\nto each registered nurse and the number of nurses and ancillary staff to\nbe present on each unit and shift and shall be used as the primary\ncomponent of the general hospital staffing budget.\n (b) Factors to be considered and incorporated in the development of\nthe plan shall include, but are not limited to:\n (i) Census, including total numbers of patients on the unit on each\nshift and activity such as patient discharges, admissions, and\ntransfers;\n (ii) Measures of acuity and intensity of all patients and nature of\nthe care to be delivered on each unit and shift;\n (iii) Skill mix;\n (iv) The availability, level of experience, and specialty\ncertification or training of nursing personnel providing patient care,\nincluding charge nurses, on each unit and shift;\n (v) The need for specialized or intensive equipment;\n (vi) The architecture and geography of the patient care unit,\nincluding but not limited to placement of patient rooms, treatment\nareas, nursing stations, medication preparation areas, and equipment;\n (vii) Mechanisms and procedures to provide for one-to-one patient\nobservation, when needed, for patients on psychiatric or other units as\nappropriate;\n (viii) Other special characteristics of the unit or community patient\npopulation, including age, cultural and linguistic diversity and needs,\nfunctional ability, communication skills, and other relevant social or\nsocio-economic factors;\n (ix) Measures to increase worker and patient safety, which could\ninclude measures to improve patient throughput;\n (x) Staffing guidelines adopted or published by other states or local\njurisdictions, national nursing professional associations, specialty\nnursing organizations, and other health professional organizations;\n (xi) Availability of other personnel supporting nursing services on\nthe unit;\n (xii) Waiver of plan requirements in the case of unforeseeable\nemergency circumstances as defined in subdivision fourteen of this\nsection;\n (xiii) Coverage to enable registered nurses, licensed practical\nnurses, and ancillary staff to take meal and rest breaks, planned time\noff, and unplanned absences that are reasonably foreseeable as required\nby law or the terms of an applicable collective bargaining agreement, if\nany, between the general hospital and a representative of the nursing or\nancillary staff;\n (xiv) The nursing quality indicators required under subdivision\nseventeen of this section;\n (xv) General hospital finances and resources; and\n (xvi) Provisions for limited short-term adjustments made by\nappropriate general hospital personnel overseeing patient care\noperations to the staffing levels required by the plan, necessary to\naccount for unexpected changes in circumstances that are to be of\nlimited duration.\n (c) Semiannual review of the staffing plan against patient needs and\nknown evidence-based staffing information, including the nursing\nsensitive quality indicators collected by the general hospital.\n (d) Review, assessment, and response to complaints regarding potential\nviolations of the adopted staffing plan, staffing variations, or other\nconcerns regarding the implementation of the staffing plan and within\nthe purview of the committee.\n 5. Compliance provisions. (a) The clinical staffing plan shall comply\nwith all federal and state laws and regulations and shall not diminish\nother standards contained in state or federal law and regulations, or\nthe terms of an applicable collective bargaining agreement, if any.\n (b) The clinical staffing plan shall comply with applicable laws and\nregulations, including, but not limited to:\n (i) Regulations made by the department on burn unit staffing, liver\ntransplant staffing, and operating room circulating nurse staffing;\n (ii) Staffing regulations to be promulgated by the commissioner\nrelating to staffing in intensive care and critical care units no later\nthan January first, two thousand twenty-two. Such regulations shall\nconsider the factors set forth in paragraph (b) of subdivision four of\nthis section, standards in place in neighboring states, and a minimum\nstandard of twelve hours of registered nurse care per patient per day;\n (iii) Such other staffing standards or regulations as are currently in\neffect or may hereafter be established by the department or enacted by\nthe legislature; and\n (iv) The provisions of section one hundred sixty-seven of the labor\nlaw and any related regulations.\n (c) The clinical staffing plan shall comply with and incorporate any\nminimum staffing levels provided for in any applicable collective\nbargaining agreement, including but not limited to nurse-to-patient\nratios, caregiver-to-patient ratios, staffing grids, staffing matrices,\nor other staffing provisions.\n 6. Process for adoption of clinical staffing plans. (a) The clinical\nstaffing committee shall produce the general hospital's annual clinical\nstaffing plan by July first of each year.\n (b) Clinical staffing plans shall be developed and adopted by\nconsensus of the clinical staffing committee. For the purposes of\ndetermining whether there is a consensus, the management members of the\ncommittee shall have one vote and the employee members of the committee\nshall have one vote, regardless of the actual number of members of the\ncommittee. Each side may determine its own method of casting its vote\nto adopt all or part of the clinical staffing plan.\n (c) The general hospital shall adopt any clinical staffing plan that\nis wholly or partially recommended by a consensus of the clinical\nstaffing committee. If there is no consensus on the recommended staffing\nplan or any of its parts, the chief executive officer of the general\nhospital shall use the officer's discretion to adopt a plan or partial\nplan for which there is no consensus. In this case, the chief executive\nofficer shall provide a written explanation of the elements of the\nclinical staffing plan that the committee was unable to agree on,\nincluding the final written proposals from the two parties and their\nrationales. In no event may a chief executive officer fail to include in\nthe adopted plan any staffing related terms and conditions of the plan\nthat has previously been adopted through any applicable collective\nbargaining agreement.\n (d) Each general hospital shall adopt and submit its first hospital\nclinical staffing plan under this section to the department no later\nthan July first, two thousand twenty-two and annually thereafter. The\nplan submitted to the department shall, where applicable, include the\nwritten explanation from the chief executive officer and written\nproposals from the two parties regarding elements that the committee did\nnot agree on as required in paragraph (c) of this subdivision. The\nsubmitted clinical staffing plan shall include data, from at least the\nprevious year, on the frequency and duration of variations from the\nadopted clinical staffing plan, the number of complaints relating to the\nclinical staffing plan and their disposition, as well as descriptions of\nunresolved complaints submitted pursuant to paragraph (b) of subdivision\nseven of this section. The department shall post the plan as part of\neach individual general hospital's health profile on the website of the\ndepartment no later than July thirty-first of each year. If the adopted\nclinical staffing plan is subsequently amended, the amended plan shall\nbe submitted to the department within thirty days of adoption. Adopted\nstaffing plans shall be amended to include newly created units and\nexisting units that undergo clinical or programmatic changes that\nfundamentally alter their character or nature. The department shall post\namended staffing plans upon receipt.\n 7. Implementation of clinical staffing plans. (a) Beginning January\nfirst, two thousand twenty-three, and annually thereafter, each general\nhospital shall implement the clinical staffing plan adopted by July\nfirst of the prior calendar year, and any subsequent amendments, and\nassign personnel to each patient care unit in accordance with the plan.\n (b) A registered nurse, licensed practical nurse, ancillary member of\nthe frontline team, or collective bargaining representative may report\nto the clinical staffing committee any variations where the personnel\nassignment in a patient care unit is not in accordance with the adopted\nstaffing plan and may make a complaint to the committee based on the\nvariations.\n (c) The clinical staffing committee shall develop a process to\nexamine, respond to, and track data submitted under paragraph (b) of\nthis subdivision. The clinical staffing committee may by consensus, as\ndescribed in paragraph (b) of subdivision six of this section, determine\na complaint resolved or dismissed. The clinical staffing committee shall\nalso establish agreed upon rules and criteria to provide for\nconfidentiality of complaints that are in the process of being examined\nor are found to be unsubstantiated. This subdivision does not infringe\nupon or limit the rights of any collective bargaining representative of\nemployees, or of any employee or group of employees pursuant to\napplicable law, including without limitation any applicable state or\nfederal labor laws.\n 8. Posting of staffing information. Each general hospital shall post,\nin a publicly conspicuous area on each patient care unit, the clinical\nstaffing plan for that unit and the actual daily staffing for that shift\non that unit as well as the relevant clinical staffing.\n 9. Retaliation and intimidation prohibited. A general hospital shall\nnot retaliate against or engage in any form of intimidation of:\n (a) An employee for performing any duties or responsibilities in\nconnection with the clinical staffing committee; or\n (b) An employee, patient, or other individual who notifies the\nclinical staffing committee or the hospital administration of the\nindividual's staffing concerns.\n 10. Special considerations. Nothing in this section is intended to\ncreate unreasonable burdens on critical access hospitals under 42 U.S.C.\nSec. 1395i-4 and sole community hospitals under 42 U.S.C. Sec.\n1395ww(d)(5) related to the operation of their clinical staffing\ncommittees. Critical access and sole community hospitals may develop\nflexible approaches to accomplish the requirements of this section.\nClinical staffing plans from such entities submitted to the department\nshall contain a description of any ways in which the general hospital's\napproach to creating the plan differed from the process outlined in this\nsection. This subdivision does not relieve such entities from compliance\nwith other provisions of this section related to the adoption,\nimplementation and adherence to an adopted clinical staffing plan,\nreporting and disclosure, or other requirements of this section.\n 11. Investigations. (a) The department shall investigate potential\nviolations of this section following receipt of a complaint with\nsupporting evidence, of failure to:\n (i) Form or establish a clinical staffing committee;\n (ii) Comply with the requirements of this section in creating a\nclinical staffing plan;\n (iii) Adopt all or part of a clinical staffing plan that is approved\nby consensus of the clinical staffing committee and submitted to the\ndepartment;\n (iv) Conduct a semiannual review of a clinical staffing plan; or\n (v) Submit to the department a clinical staffing plan on an annual\nbasis and any updates.\n (b) The department shall initiate an investigation of unresolved\ncomplaints, that have first been submitted to the clinical staffing\ncommittee, regarding compliance with the clinical staffing plan,\npersonnel assignments in a patient care unit or staffing levels, or any\nother requirement of the adopted clinical staffing plan, excluding\ncomplaints determined by the clinical staffing committee to be resolved\nor dismissed as determined by consensus of the clinical staffing\ncommittee as described in paragraph (b) of subdivision six of this\nsection.\n (c) The department shall initiate an investigation after making an\nassessment that there is a pattern of failure to resolve complaints\nsubmitted to the clinical staffing committee or a pattern of failure to\nreach consensus on the adoption of all or part of a clinical staffing\nplan. In the case of a pattern of failure to resolve complaints or to\nreach consensus on the adoption of all or part of a clinical staffing\nplan, the department shall determine if the pattern was due to one of\nthe parties routinely refusing to resolve complaints or reach consensus.\n (d) Any department investigation of a complaint under this subdivision\nshall consider whether unforeseeable emergency circumstances as defined\nin subdivision fourteen of this section contributed to the failure of\nthe general hospital to comply with this section.\n (e) After an investigation conducted under paragraph (a) or (b) of\nthis subdivision, if the department determines that there has been a\nviolation, the department shall require the general hospital to submit a\ncorrective plan of action within forty-five days of the presentation of\nfindings from the department to the hospital. If the department\ndetermines after investigation under paragraph (c) of this subdivision\nthat the general hospital representatives on the clinical staffing\ncommittee were responsible for a pattern of not resolving complaints or\nfor a pattern of not reaching consensus, the department shall require\nthe general hospital to submit a corrective action plan within\nforty-five days of the presentation of findings to the general hospital.\nIf the department finds that the frontline staff representatives on the\nclinical staffing committee were responsible for a pattern of not\nresolving complaints or for a pattern of not reaching consensus, the\ndepartment shall not require the general hospital to submit a corrective\naction plan or impose a civil penalty on the general hospital pursuant\nto subdivision twelve of this section.\n 12. Civil penalties. In the event that a general hospital fails to\nsubmit or submits but fails to implement a corrective action plan in\nresponse to a violation or violations found by the department based on a\ncomplaint filed pursuant to paragraph (a), (b) or (c) of subdivision\neleven of this section, the department may impose a civil penalty as\nauthorized by section twelve of this chapter for all violations asserted\nagainst the general hospital, until the general hospital submits or\nimplements a corrective action plan or takes other action directed by\nthe department.\n 13. Posting of penalties and related information. The department shall\nmaintain for public inspection, including posting on the general\nhospital profile on the department website, records of any civil\npenalties, administrative actions, or license suspensions or revocations\nimposed on general hospitals under this section.\n 14. Unforeseeable emergency circumstances. (a) For purposes of this\nsection, "unforeseeable emergency circumstance" means:\n (i) Any officially declared national, state, or municipal emergency;\n (ii) When a general hospital disaster plan is activated; or\n (iii) Any unforeseen disaster or other catastrophic event that\nimmediately affects or increases the need for health care services.\n (b) In determining whether a general hospital has violated its\nobligations under this section to comply with the general hospital's\nclinical staffing plan, it shall not be a defense that it was unable to\nsecure sufficient staff if the lack of staffing was foreseeable and\ncould be prudently planned for or involved routine nurse staffing needs\nthat arose due to typical staffing patterns, typical levels of\nabsenteeism, and time off typically approved by the employer for\nvacation, holidays, sick leave, and personal leave.\n 15. Complaints. Nothing in this section shall be construed to preclude\nthe ability to submit a complaint to the department as provided for\nunder this chapter. Nothing in this section shall be construed as\nsupplanting other complaint mechanisms established by a general\nhospital, including mechanisms designed to aid in compliance with other\nfederal, state or local laws. Nothing in this section shall be construed\nas limiting or supplanting the rights of employees and their collective\nbargaining representatives to fully enforce any and all rights under the\nterms of a collective bargaining agreement. An employer shall not assert\nor attempt to assert a claim that enforcement of the collective\nbargaining agreement is barred or limited by any provisions of this\nsection.\n 16. Annual report. (a) The department shall submit an annual report to\nthe speaker of the assembly, the temporary president of the senate, and\nthe chairs of the health committees of the assembly and senate and the\ngovernor on or before December thirty-first of each year. This report\nshall include the number of complaints submitted to the department, the\ndisposition of these complaints, the number of investigations conducted,\nand the associated costs for complaint investigations, if any.\n (b) Prior to the submission of the report, the commissioner shall\nconvene a stakeholder workgroup consisting of hospital associations and\nunions representing nurses and other ancillary members of the frontline\nteam. The stakeholder workgroup shall review the report prior to its\nsubmission to the speaker of the assembly, the temporary president of\nthe senate, and the chairs of the health committees of the assembly and\nsenate.\n 17. Disclosure of nursing quality indicators. (a) Every facility with\nan operating certificate pursuant to the requirements of this article\nshall make available to the public information regarding nurse staffing\nand patient outcomes as specified by the commissioner by rule and\nregulation. The commissioner shall promulgate rules and regulations on\nthe disclosure of nursing quality indicators providing for the\ndisclosure of information including at least the following, as\nappropriate to the reporting facility:\n (i) The number of registered nurses providing direct care and the\nratio of patients per registered nurse, full-time equivalent, providing\ndirect care. This information shall be expressed in actual numbers, in\nterms of total hours of nursing care per patient, including adjustment\nfor case mix and acuity, and as a percentage of patient care staff, and\nshall be broken down in terms of the total patient care staff, each\nunit, and each shift.\n (ii) The number of licensed practical nurses providing direct care.\nThis information shall be expressed in actual numbers, in terms of total\nhours of nursing care per patient including adjustment for case mix and\nacuity, and as a percentage of patient care staff, and shall be broken\ndown in terms of the total patient care staff, each unit, and each\nshift.\n (iii) The number of unlicensed personnel utilized to provide direct\npatient care, including adjustment for case mix and acuity. This\ninformation shall be expressed both in actual numbers and as a\npercentage of patient care staff and shall be broken down in terms of\nthe total patient care staff, each unit, and each shift.\n (iv) Incidence of adverse patient care, including incidents such as\nmedication errors, patient injury, decubitus ulcers, nosocomial\ninfections, and nosocomial urinary tract infections.\n (v) Methods used for determining and adjusting staffing levels and\npatient care needs and the facility's compliance with these methods.\n (vi) Data regarding complaints filed with any state or federal\nregulatory agency, or an accrediting agency, and data regarding\ninvestigations and findings as a result of those complaints, degree of\ncompliance with acceptable standards, and the findings of scheduled\ninspection visits.\n (b) Such information shall be provided to the commissioner of any\nstate agency responsible for licensing or accrediting the facility, or\nresponsible for overseeing the delivery of services either directly or\nindirectly, to any employee of a general hospital or the employee's\ncollective bargaining agent, if any, and to any member of the public who\nrequests such information directly from the facility. Written statements\ncontaining such information shall state the source and date thereof.\n (c) The commissioner shall make regulations to provide a uniform\nformat or form for complying with the reporting requirements of\nsubparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision,\nallowing patients and the public to clearly understand and compare\nstaffing patterns and actual levels of staffing across facilities. Such\nuniform format or form shall allow facilities to include a description\nof additional resources available to support unit level patient care and\na description of the general hospital. The information required by\nsubparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision,\nreported in a manner determined by the commissioner, shall be filed with\nthe department electronically on a quarterly basis and shall be\navailable to the public on the department's website. The regulations\nshall take effect no later than December thirty-first, two thousand\ntwenty-two. Information required to be provided pursuant to\nsubparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision\nshall be made available to the public no later than July first, two\nthousand twenty-three.\n 18. Advisory commission. (a) There is hereby established an\nindependent advisory commission, composed of nine experts in staffing\nstandards and quality of patient care, including: three experts in\nnursing practice, quality of nursing care or patient care standards, one\nof whom shall be appointed by the governor, one of whom shall be\nappointed by the speaker of the assembly and one of whom shall be\nappointed by the temporary president of the senate; three\nrepresentatives of unions representing nurses, one of whom shall be\nappointed by the governor, one of whom shall be appointed by the speaker\nof the assembly and one of whom shall be appointed by the temporary\npresident of the senate; and three members representing general\nhospitals, one of whom shall be appointed by the governor, one of whom\nshall be appointed by the speaker of the assembly and one of whom shall\nbe appointed by the temporary president of the senate. The members of\nthe commission shall serve at the pleasure of the appointing official.\nMembers of the commission shall keep confidential any information\nreceived in the course of their duties and may only use such information\nin the course of carrying out their duties on the commission, except\nthose reports required to be issued by the commission under this\nsection, which may only include de-identified information.\n (b) The advisory commission shall convene from time to time in order\nto evaluate the effectiveness of the clinical staffing committees\nrequired by this section. Such review shall evaluate the following\nmetrics, including but not limited to quantitative and qualitative data\non whether staffing levels were improved and maintained, patient\nsatisfaction, employee satisfaction, patient quality of care metrics,\nworkplace safety, and any other metrics the commission deems relevant.\nThe commission shall also review the annual report submitted by the\ndepartment and make recommendations to the speaker of the assembly, the\ntemporary president of the senate, and the chairs of the health\ncommittees of the assembly and senate as set forth in paragraph (d) of\nthis subdivision.\n (c) The advisory commission may collect and shall be provided all\nrelevant information, necessary to carry out its functions, from the\ndepartment and other state agencies. The commission may also invite\ntestimony by experts in the field and from the public. In making its\nrecommendations to the speaker of the assembly, the temporary president\nof the senate, and the chairs of the health committees of the assembly\nand senate, the commission shall analyze relevant data, including data\nand factors set forth in paragraph (b) of subdivision four of this\nsection related to clinical staffing plans. The commission may also make\nrecommendations for additional or enhanced enforcement mechanisms or\npowers to address general hospital failure to comply with this section\nand recommend the appropriation of funding for the department to enforce\nthis section or to assist general hospitals in hiring additional staff\nto comply with this section.\n (d) The advisory commission shall submit to the speaker of the\nassembly, the temporary president of the senate and the chairs of the\nhealth committees of the assembly and senate, and make available to the\npublic a report that makes recommendations to the speaker of the\nassembly, the temporary president of the senate, and the chairs of the\nhealth committees of the assembly and senate for further legislative\naction, if any, in order to improve working conditions and quality of\ncare in general hospitals pursuant to this section and its intent.\n (e) The commission shall submit its report and recommendations to the\nspeaker of the assembly, the temporary president of the senate, and the\nchairs of the health committees of the assembly and senate no later than\nOctober thirty-first, two thousand twenty-four, once three years of\nstaffing plans have been submitted to the department pursuant to this\nsection.\n (f) Members of the commission shall receive no compensation for their\nservices, but shall be allowed their actual and necessary expenses\nincurred in the performance of their duties hereunder.\n (g) The legislature may appropriate funding for the commission to hire\nstaff or consultants and provide for the operation of the commission as\nreasonably necessary to fulfill its functions.\n