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New Year, New Laws: Changes to New York Health Care Provider Staffing Laws Taking Effect in January 2023

Last year, we published a blog post detailing certain laws that went into effect, geared toward initiating reform in nursing homes licensed under Articles 28 of the New York Public Health Law. On January 1, 2023, certain provisions of that legislation, which focused on staffing in nursing homes, will take effect. In addition to the push for staffing reform in nursing homes, in July 2021 New York enacted legislation to encourage similar reform in general hospitals licensed under Article 28 of the New York Public Health Law. Some of these new requirements for general hospitals will also take effect in January 2023. In this post, we summarize the changes to general hospital and nursing home staffing laws and discuss what these changes mean for both.

Clinical Staffing Committees and Disclosure of Nursing Quality Indicators

On June 18, 2021, N.Y. Public Health Law § 2805-t was enacted. Under § 2805-t, all general hospitals licensed pursuant to Article 28 of the Public Health Law were required to establish a clinical staffing committee (Committee) no later than January 1, 2022.  The primary responsibility of this Committee is to establish a clinical staffing plan (Plan) at such Article 28 hospital.  The Plan must reflect the needs of the patients, include specific staffing for each patient care unit and work shift, designate guidelines for the number of patients assigned to each registered nurse, and indicate the number of nurses and ancillary staff required to be present in each unit and during each shift. The Committee is required to consider and incorporate the following factors into the Plan:

  • Census, which includes the total number patients on the unit during each shift and reflects activities such as admissions, transfers, and discharges;

  • Measures of patient acuity and intensity and nature of the care to be delivered on each unit and during each shift;

  • Skill mix;

  • The availability, level of experience, and specialty certification or training of nursing personnel providing patient care, including charge nurses, on each unit and shift;

  • The need for specialized or intensive equipment;

  • The patient care unit’s architecture and geography, including treatment areas, patient room placement, nursing stations, equipment, and medication preparation areas;

  • Procedures to provide for one-to-one patient observation, when needed, for patients in psychiatric or other units;

  • Other special characteristics of the unit or community patient population, which may include patient’s age, cultural and linguistic diversity and needs, functional ability, communication skills, and other relevant social or socio-economic factors;

  • Measures to increase worker and patient safety;

  • Staffing guidelines adopted or published by other states or local jurisdictions, national nursing professional associations, specialty nursing organizations, and other health professional organizations;

  • Availability of other personnel supporting nursing services on the unit;

  • Waiver of plan requirements in the case of unforeseeable emergency circumstances, which are defined as:

    • Any officially declared national, state, or municipal emergency;

    • The activation of a general hospital disaster plan; or

    • Any unforeseen or catastrophic event that immediately affects or increases the need for health care services;

  • Coverage to enable registered nurses, licensed practical nurses, and ancillary staff to take meal and rest breaks, planned time off, and unplanned absences that are reasonably foreseeable;

  • The six nursing quality indicators required under N.Y. Public Health Law § 2805-t(17), which include:

    • The number of registered nurses providing direct care and the ratio of patients per registered nurse, full-time equivalent, providing direct care;

    • The number of licensed practical nurses providing direct care.

    • The number of unlicensed personnel utilized to provide direct patient care, including adjustment for case mix and acuity;

    • Incidence of adverse patient care, including incidents such as medication errors, patient injury, decubitus ulcers, nosocomial infections, and nosocomial urinary tract infections;

    • Methods used for determining and adjusting staffing levels and patient care needs and the facility's compliance with these methods; and

    • Data regarding complaints filed with any state or federal regulatory agency, or an accrediting agency, and data regarding investigations and findings as a result of those complaints, degree of compliance with acceptable standards, and the findings of scheduled inspection visits.

  • General hospital finances and resources; and

  • Provisions for limited short-term adjustments made by appropriate general hospital personnel overseeing patient care operations to the staffing levels required by the plan, necessary to account for unexpected changes in circumstances that are to be of limited duration.

The Committee must also review, assess, and respond to complaints regarding potential violations of the Plan, staffing variations, or any concerns raised about the Plan’s implementation. The Committee reviews the Plan semiannually against patient needs and evidence-based staffing information. The Committee must come to a consensus on the Plan and the general hospital must adopt and submit the Plan to the Department of Health no later than July 1 of each year. This year, general hospitals were required to submit their Plans no later than July 1, 2022.

Notably, Section § 2805-t(7) requires that, beginning January 1, 2023, and annually thereafter, each hospital must implement the Plan that was adopted by July 1 of that calendar year. The hospital must post the Plan for the patient care unit, the actual daily staffing for the shift in that unit, and relevant clinical staffing in a publicly conspicuous area in each patient care unit.

Nursing Home Staffing Levels

N.Y. Public Health Law § 2895-b(3)(b) will take effect on January 1, 2023. In our post last year, we covered N.Y. Public Health Law § 2895-b(3)(a), which set forth the minimum standard for staffing hours in nursing homes. Under this standard, nursing homes are required to maintain daily average staffing hours equal to 3.5 hours of care per resident per day. Included in that 3.5 hours, a certified nurse aide or a nurse aide must provide no less than 2.2 hours of care per resident per day. Section 2895-b(3)(b) taking effect January 1, 2023 modifies this standard to require that only certified nursing aides, rather than certified nursing aides or nurse aides, must provide no less than 2.2 hours of care per resident per day.

Conclusion

As January 2023 approaches, it is important for general hospitals and nursing homes in New York to be mindful of the above laws that are taking effect. General hospitals and nursing homes are encouraged to review their current clinical staffing plans and policies to ensure continued compliance.

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 334
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About this Author

Associate

Cody focuses his practice on health care transactions and advises health care organizations on regulatory, compliance, and governance matters. He regularly negotiates and drafts documents for mergers, acquisitions, and reorganizations. Cody assists clients with formation and dissolution, governance disclosures to state regulatory bodies, employment agreements, and licensure and certification applications. His practice involves preparing a wide variety of corporate and commercial agreements, including license and service agreements. In addition, Cody represents clients in the technology and...

212.692.6760
Jean D. Krebs Healthcare Attorney Mintz
Associate

Jean focuses her practice on health care transactional, regulatory, and compliance matters. She represents a variety of clients across the health care industry, including hospitals, physician organizations, health care systems, and long-term and urgent care providers.

Prior to joining Mintz, Jean was an associate at a Long Island, New York-based boutique law firm that serves the health care industry. In this role, she counseled clients on a broad range of health care compliance, litigation, and employment matters. This included defending clients in Medicaid Fraud Control Unit and...

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