§ 2895-B — Nursing home staffing levels

§ 2895-b. Nursing home staffing levels. 1. Definitions. As used in\nthis section, the following terms shall have the following meanings:\n (a) "Certified nurse aide" means any person included in the nursing\nhome nurse aide registry pursuant to section twenty-eight hundred\nthree-j of this chapter.\n (b) "Licensed nurse" means a registered professional nurse or licensed\npractical nurse licensed pursuant to article one hundred thirty-nine of\nthe education law.\n (c) "Staffing hours" means the hours reported by a nursing home to the\nfederal Centers for Medicare and Medicaid Services through the payroll\nbased journal for long-term care facilities.\n (d) "Nurse aides" means any person who is included in the nurse aide\nhour component of the payroll based journal for long-term care\nfacilities but has not yet been certified as a certified nurse aide.\n 2. Staffing standards. (a) The commissioner shall, by regulation,\nestablish staffing standards for nursing home minimum staffing levels to\nmeet applicable standards of service and care and to provide services to\nattain or maintain the highest practicable physical, mental, and\npsychosocial well-being of each resident of the facility. Compliance\nshall be determined quarterly by comparing the daily average of the\nnumber of hours provided per resident, per day, using the federal\nCenters for Medicare and Medicaid Services payroll based journal and the\nfacility's average daily census on a daily basis.\n (b) The commissioner shall establish, by regulation, civil penalties\nfor facilities out of compliance with minimum staffing levels. Such\nregulations shall include a range of penalties to account for mitigating\nfactors which shall include:\n (i) extraordinary circumstances facing the facility, including, but\nnot limited to, whether the facility has suffered through a natural\ndisaster or other catastrophic event, an officially declared national\nemergency, or state or municipal emergency declared pursuant to article\ntwo-B of the executive law, which has been initially declared subsequent\nto the effective date of this section, or other such conditions or\nunforeseen circumstances as determined by the commissioner;\n (ii) the frequency and nature of non-compliance; and\n (iii) the existence of an acute labor supply shortage within a\nparticular region. When determining if there is an acute labor supply\nshortage within a specific region in a specific quarter, or a shorter\nperiod of time as determined by the commissioner, the commissioner shall\ntake into consideration the following factors: regional labor supply of\navailable certified nurse aides, licensed practical nurses and\nregistered nurses; regional pay rates for the relevant titles as\ndetermined by the federal department of labor, bureau of labor\nstatistics; and evidence that the facility attempted to procure\nsufficient staffing.\n (c) At least thirty days before any action is taken by the\ncommissioner under paragraph (b) of this subdivision, the commissioner\nshall post the assessed penalties, and any mitigating factors that were\nconsidered in assessing the penalty on the department's website.\n (d) In determining whether a nursing home has violated its obligations\nunder this section, it shall not be a defense that such nursing home was\nunable to secure sufficient staff if the lack of staffing was\nforeseeable and could be prudently planned for, or involved routine\nstaffing needs that arose due to typical staffing patterns, typical\nlevels of absenteeism, or time off typically approved by the employer\nfor vacation, holidays, sick leave, and personal leave.\n (e) A civil penalty shall not be imposed under this section until\nafter April first, two thousand twenty-two;\n (f) Every nursing home shall:\n (i) comply with the staffing standards under this section; and\n (ii) employ sufficient staffing levels to meet applicable standards of\nservice and care and to provide service and care and to provide services\nto attain or maintain the highest practicable physical, mental, and\npsychosocial well-being of each resident of the facility.\n (g) Staffing standards established under this subdivision shall, at a\nminimum, be the staffing standards established under subdivision three\nof this section.\n (h) The minimum staffing standard includes the hours which are\nrequired to be reported by a nursing home to the federal Centers for\nMedicare and Medicaid Services through the payroll based journal for\nlong-term care for certified nursing assistants and licensed nurses. In\ndetermining compliance with the staffing standards under this\nsubdivision, an individual shall not be counted while performing\nadministrative services as defined in the payroll based journal for\nlong-term care facilities.\n 3. Statutory standard. (a) Beginning January first, two thousand\ntwenty-two every nursing home shall maintain daily average staffing\nhours equal to 3.5 hours of care per resident per day by a certified\nnurse aide, a licensed nurse or a nurse aide; provided that out of such\n3.5 hours, no less than 2.2 hours of care per resident per day shall be\nprovided by a certified nurse aide or a nurse aide, and no less than 1.1\nhours of care per resident per day shall be provided by a licensed\nnurse.\n (b) Beginning January first, two thousand twenty-three and thereafter\nevery nursing home shall maintain daily average staffing hours equal to\n3.5 hours of care per resident per day by a certified nurse aide or a\nlicensed nurse; provided that out of such 3.5 hours, no less than 2.2\nhours of care per resident per day shall be provided by a certified\nnurse aide, and no less than 1.1 hours of care per resident per day\nshall be provided by a licensed nurse.\n 4. Public disclosure of staffing levels. (a) A nursing home shall post\ninformation regarding nurse staffing that the facility is required to\nmake available to the public under section twenty-eight hundred five-t\nof this chapter. Information under this paragraph shall be displayed in\na form approved by the department and be posted in a manner which is\nvisible and accessible to residents, their families and the staff, as\nrequired by the commissioner.\n (b) A nursing home shall post a summary of this section, provided by\nthe department, in proximity to each posting required by paragraph (a)\nof this subdivision.\n 5. Fines and civil penalties. (a) All fines and civil penalties\ncollected by the commissioner pursuant to this section shall be\ndeposited into a nursing home worker recruitment and safety fund\nestablished pursuant to section ninety-nine-ss of the state finance law\nto enhance the quality of employment for residential health care\nfacility employees and assist in the recruitment and safety of\nresidential health care facility staff.\n (b) The commissioner shall distribute monies made available for this\npurpose under this subdivision in the form of grants to providers. In\ndetermining the funding for providers, the commissioner shall consider\ncriteria including, but not limited to, the overall census of a facility\nand the rate region the facility is located within. The commissioner\nshall promulgate the rules and regulations necessary for implementing\nthe program.\n