Clinical staffing committees and disclosure of nursing quality indicators

§ 2805-t. Clinical staffing committees and disclosure of nursing
quality indicators. 1. Legislative intent. The legislature hereby finds
and declares:

(a) Research demonstrates that nurses play a critical role in
improving patient safety and quality of care;

(b) Appropriate staffing of general hospital personnel, including
registered nurses available for patient care, assists in reducing
errors, complications and adverse patient care events, improves staff
safety and satisfaction, and reduces incidences of workplace injuries;

(c) Health care professional, technical, and support staff comprise
vital components of the patient care team, bringing their particular
skills and services to ensuring quality patient care;

(d) Ensuring sufficient staffing of general hospital personnel,
including registered nurses, is an urgent public policy priority in
order to protect patients and support greater retention of registered
nurses and safer working conditions; and

(e) It is the public policy of the state to promote evidence-based
nurse staffing standards and increase transparency of health care data
and decision making based on the data.

2. Clinical staffing committee. (a) Each general hospital licensed
pursuant to this article shall establish and maintain a clinical
staffing committee, either by creating a new committee or assigning the
functions of the clinical staffing committee to an existing committee,
no later than January first, two thousand twenty-two.

(b) Where a collective bargaining agreement provides for a staffing
committee, the required functions of the clinical staffing committee
established pursuant to this section shall be incorporated into that
committee. Any staffing or non-staffing committees established by a
collective bargaining agreement, shall continue to function in
accordance with the terms of the agreement, and the clinical staffing
committee established by this section shall not limit or otherwise
supplant the collective bargaining agreement.

(c) At least one-half of the members of the clinical staffing
committee shall be registered nurses, licensed practical nurses, and
ancillary members of the frontline team currently providing or
supporting direct patient care and up to one-half of the members shall
be selected by the general hospital administration and shall include but
not be limited to the chief financial officer, the chief nursing
officer, and patient care unit directors or managers or their designees.
The selection of the registered nurses, licensed practical nurses, and
ancillary frontline team members of the committee shall be according to
their respective collective bargaining agreements if there is one in
effect at the general hospital for their bargaining unit. If there is no
applicable collective bargaining agreement, the members of the clinical
staffing committee who are registered nurses, licensed practical nurses,
and ancillary members providing direct patient care shall be selected by
their peers. Ancillary members of the frontline team on the committee
shall include but are not limited to patient care technicians, certified
nursing assistants, other non-licensed staff assisting with nursing or
clerical tasks, and unit clerks.

3. Employee participation. Participation in the clinical staffing
committee by a general hospital employee shall be on scheduled work time
and compensated at the appropriate rate of pay. Clinical staffing
committee members shall be fully relieved of all other work duties
during meetings of the committee and shall not have work duties added or
displaced to other times as a result of their committee
responsibilities.

4. Primary responsibilities. Primary responsibilities of the clinical
staffing committee shall include the following functions:

(a) Development and oversight of implementation of an annual clinical
staffing plan. The clinical staffing plan shall include specific
staffing for each patient care unit and work shift and shall be based on
the needs of patients. Staffing plans shall include specific guidelines
or ratios, matrices, or grids indicating how many patients are assigned
to each registered nurse and the number of nurses and ancillary staff to
be present on each unit and shift and shall be used as the primary
component of the general hospital staffing budget.

(b) Factors to be considered and incorporated in the development of
the plan shall include, but are not limited to:

(i) Census, including total numbers of patients on the unit on each
shift and activity such as patient discharges, admissions, and
transfers;

(ii) Measures of acuity and intensity of all patients and nature of
the care to be delivered on each unit and shift;

(iii) Skill mix;

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

(v) The need for specialized or intensive equipment;

(vi) The architecture and geography of the patient care unit,
including but not limited to placement of patient rooms, treatment
areas, nursing stations, medication preparation areas, and equipment;

(vii) Mechanisms and procedures to provide for one-to-one patient
observation, when needed, for patients on psychiatric or other units as
appropriate;

(viii) Other special characteristics of the unit or community patient
population, including age, cultural and linguistic diversity and needs,
functional ability, communication skills, and other relevant social or
socio-economic factors;

(ix) Measures to increase worker and patient safety, which could
include measures to improve patient throughput;

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

(xi) Availability of other personnel supporting nursing services on
the unit;

(xii) Waiver of plan requirements in the case of unforeseeable
emergency circumstances as defined in subdivision fourteen of this
section;

(xiii) 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 as required
by law or the terms of an applicable collective bargaining agreement, if
any, between the general hospital and a representative of the nursing or
ancillary staff;

(xiv) The nursing quality indicators required under subdivision
seventeen of this section;

(xv) General hospital finances and resources; and

(xvi) 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.

(c) Semiannual review of the staffing plan against patient needs and
known evidence-based staffing information, including the nursing
sensitive quality indicators collected by the general hospital.

(d) Review, assessment, and response to complaints regarding potential
violations of the adopted staffing plan, staffing variations, or other
concerns regarding the implementation of the staffing plan and within
the purview of the committee.

5. Compliance provisions. (a) The clinical staffing plan shall comply
with all federal and state laws and regulations and shall not diminish
other standards contained in state or federal law and regulations, or
the terms of an applicable collective bargaining agreement, if any.

(b) The clinical staffing plan shall comply with applicable laws and
regulations, including, but not limited to:

(i) Regulations made by the department on burn unit staffing, liver
transplant staffing, and operating room circulating nurse staffing;

(ii) Staffing regulations to be promulgated by the commissioner
relating to staffing in intensive care and critical care units no later
than January first, two thousand twenty-two. Such regulations shall
consider the factors set forth in paragraph (b) of subdivision four of
this section, standards in place in neighboring states, and a minimum
standard of twelve hours of registered nurse care per patient per day;

(iii) Such other staffing standards or regulations as are currently in
effect or may hereafter be established by the department or enacted by
the legislature; and

(iv) The provisions of section one hundred sixty-seven of the labor
law and any related regulations.

(c) The clinical staffing plan shall comply with and incorporate any
minimum staffing levels provided for in any applicable collective
bargaining agreement, including but not limited to nurse-to-patient
ratios, caregiver-to-patient ratios, staffing grids, staffing matrices,
or other staffing provisions.

6. Process for adoption of clinical staffing plans. (a) The clinical
staffing committee shall produce the general hospital's annual clinical
staffing plan by July first of each year.

(b) Clinical staffing plans shall be developed and adopted by
consensus of the clinical staffing committee. For the purposes of
determining whether there is a consensus, the management members of the
committee shall have one vote and the employee members of the committee
shall have one vote, regardless of the actual number of members of the
committee. Each side may determine its own method of casting its vote
to adopt all or part of the clinical staffing plan.

(c) The general hospital shall adopt any clinical staffing plan that
is wholly or partially recommended by a consensus of the clinical
staffing committee. If there is no consensus on the recommended staffing
plan or any of its parts, the chief executive officer of the general
hospital shall use the officer's discretion to adopt a plan or partial
plan for which there is no consensus. In this case, the chief executive
officer shall provide a written explanation of the elements of the
clinical staffing plan that the committee was unable to agree on,
including the final written proposals from the two parties and their
rationales. In no event may a chief executive officer fail to include in
the adopted plan any staffing related terms and conditions of the plan
that has previously been adopted through any applicable collective
bargaining agreement.

(d) Each general hospital shall adopt and submit its first hospital
clinical staffing plan under this section to the department no later
than July first, two thousand twenty-two and annually thereafter. The
plan submitted to the department shall, where applicable, include the
written explanation from the chief executive officer and written
proposals from the two parties regarding elements that the committee did
not agree on as required in paragraph (c) of this subdivision. The
submitted clinical staffing plan shall include data, from at least the
previous year, on the frequency and duration of variations from the
adopted clinical staffing plan, the number of complaints relating to the
clinical staffing plan and their disposition, as well as descriptions of
unresolved complaints submitted pursuant to paragraph (b) of subdivision
seven of this section. The department shall post the plan as part of
each individual general hospital's health profile on the website of the
department no later than July thirty-first of each year. If the adopted
clinical staffing plan is subsequently amended, the amended plan shall
be submitted to the department within thirty days of adoption. Adopted
staffing plans shall be amended to include newly created units and
existing units that undergo clinical or programmatic changes that
fundamentally alter their character or nature. The department shall post
amended staffing plans upon receipt.

7. Implementation of clinical staffing plans. (a) Beginning January
first, two thousand twenty-three, and annually thereafter, each general
hospital shall implement the clinical staffing plan adopted by July
first of the prior calendar year, and any subsequent amendments, and
assign personnel to each patient care unit in accordance with the plan.

(b) A registered nurse, licensed practical nurse, ancillary member of
the frontline team, or collective bargaining representative may report
to the clinical staffing committee any variations where the personnel
assignment in a patient care unit is not in accordance with the adopted
staffing plan and may make a complaint to the committee based on the
variations.

(c) The clinical staffing committee shall develop a process to
examine, respond to, and track data submitted under paragraph (b) of
this subdivision. The clinical staffing committee may by consensus, as
described in paragraph (b) of subdivision six of this section, determine
a complaint resolved or dismissed. The clinical staffing committee shall
also establish agreed upon rules and criteria to provide for
confidentiality of complaints that are in the process of being examined
or are found to be unsubstantiated. This subdivision does not infringe
upon or limit the rights of any collective bargaining representative of
employees, or of any employee or group of employees pursuant to
applicable law, including without limitation any applicable state or
federal labor laws.

8. Posting of staffing information. Each general hospital shall 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 shift
on that unit as well as the relevant clinical staffing.

9. Retaliation and intimidation prohibited. A general hospital shall
not retaliate against or engage in any form of intimidation of:

(a) An employee for performing any duties or responsibilities in
connection with the clinical staffing committee; or

(b) An employee, patient, or other individual who notifies the
clinical staffing committee or the hospital administration of the
individual's staffing concerns.

10. Special considerations. Nothing in this section is intended to
create unreasonable burdens on critical access hospitals under 42 U.S.C.
Sec. 1395i-4 and sole community hospitals under 42 U.S.C. Sec.
1395ww(d)(5) related to the operation of their clinical staffing
committees. Critical access and sole community hospitals may develop
flexible approaches to accomplish the requirements of this section.
Clinical staffing plans from such entities submitted to the department
shall contain a description of any ways in which the general hospital's
approach to creating the plan differed from the process outlined in this
section. This subdivision does not relieve such entities from compliance
with other provisions of this section related to the adoption,
implementation and adherence to an adopted clinical staffing plan,
reporting and disclosure, or other requirements of this section.

11. Investigations. (a) The department shall investigate potential
violations of this section following receipt of a complaint with
supporting evidence, of failure to:

(i) Form or establish a clinical staffing committee;

(ii) Comply with the requirements of this section in creating a
clinical staffing plan;

(iii) Adopt all or part of a clinical staffing plan that is approved
by consensus of the clinical staffing committee and submitted to the
department;

(iv) Conduct a semiannual review of a clinical staffing plan; or

(v) Submit to the department a clinical staffing plan on an annual
basis and any updates.

(b) The department shall initiate an investigation of unresolved
complaints, that have first been submitted to the clinical staffing
committee, regarding compliance with the clinical staffing plan,
personnel assignments in a patient care unit or staffing levels, or any
other requirement of the adopted clinical staffing plan, excluding
complaints determined by the clinical staffing committee to be resolved
or dismissed as determined by consensus of the clinical staffing
committee as described in paragraph (b) of subdivision six of this
section.

(c) The department shall initiate an investigation after making an
assessment that there is a pattern of failure to resolve complaints
submitted to the clinical staffing committee or a pattern of failure to
reach consensus on the adoption of all or part of a clinical staffing
plan. In the case of a pattern of failure to resolve complaints or to
reach consensus on the adoption of all or part of a clinical staffing
plan, the department shall determine if the pattern was due to one of
the parties routinely refusing to resolve complaints or reach consensus.

(d) Any department investigation of a complaint under this subdivision
shall consider whether unforeseeable emergency circumstances as defined
in subdivision fourteen of this section contributed to the failure of
the general hospital to comply with this section.

(e) After an investigation conducted under paragraph (a) or (b) of
this subdivision, if the department determines that there has been a
violation, the department shall require the general hospital to submit a
corrective plan of action within forty-five days of the presentation of
findings from the department to the hospital. If the department
determines after investigation under paragraph (c) of this subdivision
that the general hospital representatives on the clinical staffing
committee were responsible for a pattern of not resolving complaints or
for a pattern of not reaching consensus, the department shall require
the general hospital to submit a corrective action plan within
forty-five days of the presentation of findings to the general hospital.
If the department finds that the frontline staff representatives on the
clinical staffing committee were responsible for a pattern of not
resolving complaints or for a pattern of not reaching consensus, the
department shall not require the general hospital to submit a corrective
action plan or impose a civil penalty on the general hospital pursuant
to subdivision twelve of this section.

12. Civil penalties. In the event that a general hospital fails to
submit or submits but fails to implement a corrective action plan in
response to a violation or violations found by the department based on a
complaint filed pursuant to paragraph (a), (b) or (c) of subdivision
eleven of this section, the department may impose a civil penalty as
authorized by section twelve of this chapter for all violations asserted
against the general hospital, until the general hospital submits or
implements a corrective action plan or takes other action directed by
the department.

13. Posting of penalties and related information. The department shall
maintain for public inspection, including posting on the general
hospital profile on the department website, records of any civil
penalties, administrative actions, or license suspensions or revocations
imposed on general hospitals under this section.

14. Unforeseeable emergency circumstances. (a) For purposes of this
section, "unforeseeable emergency circumstance" means:

(i) Any officially declared national, state, or municipal emergency;

(ii) When a general hospital disaster plan is activated; or

(iii) Any unforeseen disaster or other catastrophic event that
immediately affects or increases the need for health care services.

(b) In determining whether a general hospital has violated its
obligations under this section to comply with the general hospital's
clinical staffing plan, it shall not be a defense that it was unable to
secure sufficient staff if the lack of staffing was foreseeable and
could be prudently planned for or involved routine nurse staffing needs
that arose due to typical staffing patterns, typical levels of
absenteeism, and time off typically approved by the employer for
vacation, holidays, sick leave, and personal leave.

15. Complaints. Nothing in this section shall be construed to preclude
the ability to submit a complaint to the department as provided for
under this chapter. Nothing in this section shall be construed as
supplanting other complaint mechanisms established by a general
hospital, including mechanisms designed to aid in compliance with other
federal, state or local laws. Nothing in this section shall be construed
as limiting or supplanting the rights of employees and their collective
bargaining representatives to fully enforce any and all rights under the
terms of a collective bargaining agreement. An employer shall not assert
or attempt to assert a claim that enforcement of the collective
bargaining agreement is barred or limited by any provisions of this
section.

16. Annual report. (a) The department shall submit an annual report to
the speaker of the assembly, the temporary president of the senate, and
the chairs of the health committees of the assembly and senate and the
governor on or before December thirty-first of each year. This report
shall include the number of complaints submitted to the department, the
disposition of these complaints, the number of investigations conducted,
and the associated costs for complaint investigations, if any.

(b) Prior to the submission of the report, the commissioner shall
convene a stakeholder workgroup consisting of hospital associations and
unions representing nurses and other ancillary members of the frontline
team. The stakeholder workgroup shall review the report prior to its
submission to the speaker of the assembly, the temporary president of
the senate, and the chairs of the health committees of the assembly and
senate.

17. Disclosure of nursing quality indicators. (a) Every facility with
an operating certificate pursuant to the requirements of this article
shall make available to the public information regarding nurse staffing
and patient outcomes as specified by the commissioner by rule and
regulation. The commissioner shall promulgate rules and regulations on
the disclosure of nursing quality indicators providing for the
disclosure of information including at least the following, as
appropriate to the reporting facility:

(i) The number of registered nurses providing direct care and the
ratio of patients per registered nurse, full-time equivalent, providing
direct care. This information shall be expressed in actual numbers, in
terms of total hours of nursing care per patient, including adjustment
for case mix and acuity, and as a percentage of patient care staff, and
shall be broken down in terms of the total patient care staff, each
unit, and each shift.

(ii) The number of licensed practical nurses providing direct care.
This information shall be expressed in actual numbers, in terms of total
hours of nursing care per patient including adjustment for case mix and
acuity, and as a percentage of patient care staff, and shall be broken
down in terms of the total patient care staff, each unit, and each
shift.

(iii) The number of unlicensed personnel utilized to provide direct
patient care, including adjustment for case mix and acuity. This
information shall be expressed both in actual numbers and as a
percentage of patient care staff and shall be broken down in terms of
the total patient care staff, each unit, and each shift.

(iv) Incidence of adverse patient care, including incidents such as
medication errors, patient injury, decubitus ulcers, nosocomial
infections, and nosocomial urinary tract infections.

(v) Methods used for determining and adjusting staffing levels and
patient care needs and the facility's compliance with these methods.

(vi) 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.

(b) Such information shall be provided to the commissioner of any
state agency responsible for licensing or accrediting the facility, or
responsible for overseeing the delivery of services either directly or
indirectly, to any employee of a general hospital or the employee's
collective bargaining agent, if any, and to any member of the public who
requests such information directly from the facility. Written statements
containing such information shall state the source and date thereof.

(c) The commissioner shall make regulations to provide a uniform
format or form for complying with the reporting requirements of
subparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision,
allowing patients and the public to clearly understand and compare
staffing patterns and actual levels of staffing across facilities. Such
uniform format or form shall allow facilities to include a description
of additional resources available to support unit level patient care and
a description of the general hospital. The information required by
subparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision,
reported in a manner determined by the commissioner, shall be filed with
the department electronically on a quarterly basis and shall be
available to the public on the department's website. The regulations
shall take effect no later than December thirty-first, two thousand
twenty-two. Information required to be provided pursuant to
subparagraphs (i), (ii) and (iii) of paragraph (a) of this subdivision
shall be made available to the public no later than July first, two
thousand twenty-three.

18. Advisory commission. (a) There is hereby established an
independent advisory commission, composed of nine experts in staffing
standards and quality of patient care, including: three experts in
nursing practice, quality of nursing care or patient care standards, one
of whom shall be appointed by the governor, one of whom shall be
appointed by the speaker of the assembly and one of whom shall be
appointed by the temporary president of the senate; three
representatives of unions representing nurses, one of whom shall be
appointed by the governor, one of whom shall be appointed by the speaker
of the assembly and one of whom shall be appointed by the temporary
president of the senate; and three members representing general
hospitals, one of whom shall be appointed by the governor, one of whom
shall be appointed by the speaker of the assembly and one of whom shall
be appointed by the temporary president of the senate. The members of
the commission shall serve at the pleasure of the appointing official.
Members of the commission shall keep confidential any information
received in the course of their duties and may only use such information
in the course of carrying out their duties on the commission, except
those reports required to be issued by the commission under this
section, which may only include de-identified information.

(b) The advisory commission shall convene from time to time in order
to evaluate the effectiveness of the clinical staffing committees
required by this section. Such review shall evaluate the following
metrics, including but not limited to quantitative and qualitative data
on whether staffing levels were improved and maintained, patient
satisfaction, employee satisfaction, patient quality of care metrics,
workplace safety, and any other metrics the commission deems relevant.
The commission shall also review the annual report submitted by the
department and make recommendations to the speaker of the assembly, the
temporary president of the senate, and the chairs of the health
committees of the assembly and senate as set forth in paragraph (d) of
this subdivision.

(c) The advisory commission may collect and shall be provided all
relevant information, necessary to carry out its functions, from the
department and other state agencies. The commission may also invite
testimony by experts in the field and from the public. In making its
recommendations to the speaker of the assembly, the temporary president
of the senate, and the chairs of the health committees of the assembly
and senate, the commission shall analyze relevant data, including data
and factors set forth in paragraph (b) of subdivision four of this
section related to clinical staffing plans. The commission may also make
recommendations for additional or enhanced enforcement mechanisms or
powers to address general hospital failure to comply with this section
and recommend the appropriation of funding for the department to enforce
this section or to assist general hospitals in hiring additional staff
to comply with this section.

(d) The advisory commission shall submit to the speaker of the
assembly, the temporary president of the senate and the chairs of the
health committees of the assembly and senate, and make available to the
public a report that makes recommendations to the speaker of the
assembly, the temporary president of the senate, and the chairs of the
health committees of the assembly and senate for further legislative
action, if any, in order to improve working conditions and quality of
care in general hospitals pursuant to this section and its intent.

(e) The commission shall submit its report and recommendations to the
speaker of the assembly, the temporary president of the senate, and the
chairs of the health committees of the assembly and senate no later than
October thirty-first, two thousand twenty-four, once three years of
staffing plans have been submitted to the department pursuant to this
section.

(f) Members of the commission shall receive no compensation for their
services, but shall be allowed their actual and necessary expenses
incurred in the performance of their duties hereunder.

(g) The legislature may appropriate funding for the commission to hire
staff or consultants and provide for the operation of the commission as
reasonably necessary to fulfill its functions.