Two New Pieces of Legislation Will Require “Safe Staffing” Measures in New York Hospitals and Nursing Homes

May 10, 2021

By: Michael E. Hickey and Mary E. Moran

The New York legislature has introduced two pieces of legislation that will greatly impact how healthcare facilities in the state are staffed. The first bill, A108/S1168, pertains to hospitals, and the second bill, S.6346/A.7119, pertains to nursing homes. Both proposed laws have passed the Senate and Assembly and await the governor’s signature. 

Hospital Staffing Bill 

Under the first bill, every general hospital licensed pursuant to the Public Health Law must establish and maintain a clinical staffing committee made up of registered nurses, licensed practical nurses, ancillary staff members providing direct patient care and hospital administrators. Alternatively, hospitals may assign the required functions of the clinical staffing committee to an existing committee (such as a committee established by a collective bargaining agreement). The deadline to form this committee (or assign functions to an existing committee) is Jan. 1, 2022. 

The committees are charged with developing and implementing annual clinical staffing plans that include specific guidelines or ratios, matrices or grids that indicate how many patients may be assigned to each nurse and the number of ancillary staff in each unit. The committees must take into account numerous factors when developing the plans, such as the hospital census, staff skill mix and availability of personnel. An updated plan must be submitted to the Department of Health (DOH) by July 1 each year, and the deadline for the hospital to implement the plan is the following January 1. 

Hospitals are required to post, in a publicly conspicuous area on each patient care unit, the clinical staffing plan for that unit and the actual daily staffing for that unit as well as the relevant clinical staffing. The staffing plans must also be posted on the DOH website. 

The legislation also requires that employee participation in the clinical staffing committee take place on scheduled work time, and participants must be compensated at the appropriate rate of pay.  

The committees are also responsible for reviewing the staffing plans, adjusting the plans as necessary and responding to complaints of staffing variations or violations of the plans. The DOH is charged with investigating potential violations of staffing plan requirements and unresolved complaints that were submitted to a hospital's clinical staffing committee. If a hospital fails to remedy a violation that was caused by its failure to act, the hospital may be subject to civil penalties. 

Nursing Home Staffing Bill 

The second bill authorizes the Commissioner of Health to establish, by regulation, staffing standards for nursing homes. The legislation sets forth a statutory minimum standard that the Commissioner’s standard must meet or exceed.

Under the statutory standard, beginning Jan. 1, 2021, every nursing home must maintain daily average staffing hours equal to 3.5 hours of care per resident. At least 2.2 of those hours must be provided by a certified nurse aide (or, until Jan. 1, 2023, by a nurse aide), and at least 1.1 hours by a licensed nurse. The nursing home is also required to post information regarding nurse staffing at the facility. 

The legislation authorizes the Commissioner of Health to promulgate regulations that establish civil penalties for failure to comply with minimum staffing levels. The penalties will account for mitigating factors including: (1) extraordinary circumstances facing the facility (such as natural disasters); (2) the frequency of noncompliance; and (3) the existence of a nurse-labor shortage in the area of the nursing home.

If you have questions regarding these bills, or how to go about implementing any necessary changes to your staffing standards, please reach out to Michael E. Hickey, Mary E. Aldridge, any attorney in Bond’s Labor and Employment or Health Care practices or the attorney at the firm with whom you are regularly in contact.