The facility shall have sufficient nursing staff to
provide nursing and related services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each resident, as
determined by resident assessments and individual plans of care. The facility
shall assure that each resident receives treatments, medications, diets and other
health services in accordance with individual care plans.
(a) Staffing standards. The facility shall have
sufficient nursing staff to provide nursing and related services to attain or
maintain the highest practicable physical, mental, and psychosocial well-being of
each resident, as determined by resident assessments and individual plans of
care. The facility shall further assure that staffing levels enable each resident
to receive treatments, medications, diets and other health services in accordance
with individual care plans. At a minimum, the facility shall ensure its daily
nursing staff levels comply with paragraph (2) of subdivision (b) of this
Section; provided, however, that compliance with paragraph (2) of subdivision (b)
of this Section shall not serve as a defense where the facility has failed to
provide sufficient nursing care to residents in accordance with their resident
assessment and individual plans of care, or the facility failed to ensure
residents received ordered treatments, medications, diets or other health
services consistent with the residents' individual plans of care and in
accordance with federal and State law and regulations.
(b) Sufficient staff.
(1) The facility shall provide services by
sufficient numbers of each of the following types of personnel on a 24-hour basis
to provide nursing care to all residents in accordance with resident care plans:
(i) registered professional nurses or licensed
practical nurses;
(ii) certified nurse
aides, meaning any person included in the nursing home nurse aide registry
pursuant to Section
2803-j of
the Public Health Law; and
(iii)
other nursing personnel.
(2) Minimum Nursing Staff Requirements. At a
minimum, the facility shall employ certified nurse aides, registered professional
nurses, licensed practical nurses, or nurse aides sufficient to maintain the
following daily staffing hours per resident:
(i) From January first, two thousand twenty-two
through December thirty-first, two thousand twenty-two, the facility shall
maintain daily average staffing hours equal to 3.5 hours of care per resident per
day by a certified nurse aide, registered professional nurse, licensed practical
nurse, or nurse aide. Out of such 3.5 hours, no less than 2.2 hours of care per
resident per day shall be provided by a certified nurse aide or a nurse aide, and
no less than 1.1 hours of care per resident per day shall be provided by a
registered professional nurse or licensed practical nurse.
(ii) Beginning January first, two thousand
twenty-three and thereafter, every nursing home shall maintain daily average
staffing hours equal to 3.5 hours of care per resident per day by a certified
nurse aide, registered professional nurse, or licensed practical nurse. Out of
such 3.5 hours, no less than 2.2 hours of care per resident per day shall be
provided by a certified nurse aide, and no less than 1.1 hours of care per
resident per day shall be provided by a registered professional nurse or licensed
practical nurse.
(3) The
facility shall designate a registered professional nurse or licensed practical
nurse to serve as a charge nurse on each tour of duty who is responsible for the
supervision of total nursing activities in the facility. Alternatively, as
necessitated by resident care needs, the facility may designate one charge nurse
for each tour of duty on each resident care unit or on proximate nursing care
units in the facility provided that each nursing care unit in the facility is
under the supervision of a charge nurse.
(c) Registered professional nurse.
(1) The facility shall use the services of a
registered professional nurse for at least 8 consecutive hours a day, 7 days a
week, or more often as necessary to comply with the minimum staffing requirements
set forth in paragraph (2) of subdivision (b) of this Section.
(2) The facility shall designate a registered
professional nurse to serve as the director of nursing on a full-time
basis.
(3) The director of nursing
may serve as a charge nurse only when the facility has an average daily occupancy
of 60 or fewer residents.
(d) Nurse aide.
(1) For the purpose of this section and section
415.26(d) of this
Part, nurse aide shall mean any person who is included in the nurse aide hour
component of the federal Centers for Medicare and Medicaid Services payroll based
journal for long-term care facilities but has not yet been certified as a
certified nurse aide, including individuals who are in the first four months of
employment and who are receiving training in a Department-approved nurse aide
training and competency evaluation program and are providing nursing or
nursing-related services for which they have been trained and are under the
supervision of a licensed or registered nurse, or individuals, other than a
licensed professional, who have been approved by the Department to administer
medications to residents. For the purposes of this section and section
415.26(d) of this
Part, a nurse aide does not include volunteers or those individuals who furnish
services to residents only as feeding assistants as defined in Section
415.13(e) of this
Part. Certification of such nurse aide shall be in accordance with the provisions
of section
415.26(d) of this
Part.
(2) Only individuals who meet
the following qualifications may be assigned to perform nurse aide functions, as
defined in paragraph (1) of this subdivision:
(i) a person who, as verified by the facility,
is listed in the New York State RHCF Nurse Aide Registry developed and maintained
as set forth in section
2803-j of the Public Health Law and as
described in section
415.31
of this Part;
(ii) a graduate of a
nursing program approved by the New York State Commissioner of Education or by
the licensing authority in another state, territory or possession of the United
States as preparation for practice as a licensed nurse who has taken and passed
the New York State competency examination;
(iii) a nurse aide trainee who has successfully
completed a State approved RHCF nurse aide training program as described in
section
415.26(d)
of this Part or a program designed for such purpose and approved by the State
Commissioner of Education and who is waiting to take the RHCF clinical skills and
written or oral nurse aide competency examination at the next scheduled
opportunity, such competency examinations to be passed within three consecutive
attempts within four months of the date of the initial RHCF nurse aide trainee
employment or of the completion of the State approved RHCF nurse aide training
program, whichever occurs first;
(iv)
a nurse aide trainee who has taken the competency examinations and is waiting for
the official results of the examination;
(v) a certified nurse aide who is currently
listed in another state's nursing home nurse aide registry, as verified by the
facility, and who has applied to the department to obtain State certification and
has not been denied; and
(vi) a nurse
aide trainee provided the individual is concurrently enrolled in a State approved
residential health care facility nurse aide training program which meets all
requirements set forth in this section and completes such training program and
competency examinations within 120 days of employment, in accordance with the
following:
(a) the nurse aide trainee may
assume specific duties involving direct resident care and services as training
and successful demonstration of competencies in the specific duties/skills are
completed, but not before completing at least 16 hours of classroom instructions
in the following areas:
(1) communication and
interpersonal skills;
(2) infection
control;
(3) safety/emergency
procedures, including the Heimlich maneuver;
(4) promoting residents'
independence;
(5) respecting
residents' rights; and
(6) resident
abuse, mistreatment and neglect reporting requirements as set forth in section
2803-d of the Public Health Law;
and
(b) the nurse aide
trainee shall be under the direct supervision of a nurse when the trainee is
providing direct resident care or services and identifiable as a nurse aide
trainee.
(vii) If the
facility has reason to believe that the individual has worked as a nurse aid in
any state(s) other than New York, the facility must request information from the
nurse aide registry of such other state(s) before permitting the individual to
serve as a nurse aide.
(e) Feeding assistant.
(1) Feeding assistant shall mean an individual
who meets the requirements of this section and who is paid by the facility or
provided to the facility under contract with another entity to feed residents or
assist residents with eating or hydration.
(2) The feeding assistant shall:
(i) be under the supervision of a
nurse;
(ii) only feed or assist with
feeding only those residents who do not have complicated feeding problems.
Complicated feeding problems include, but are not limited to, difficulty
swallowing, recurrent lung aspirations, and tube or parenteral/IV
feedings;
(iii) have successfully
completed a State-approved feeding assistant training program, such program shall
meet the requirements as described in section
415.26(k)
of this Part.
(3) The
charge nurse's selection of residents who can safely be fed or assisted by a
feeding assistant shall be based upon a registered professional nurse's
assessment and the resident's latest assessment and plan of care.
(4) The feeding assistant may only provide
eating and hydration assistance to residents in congregated dining rooms, not in
a resident's room.
(5) In an
emergency, the feeding assistant must call a supervisory nurse for help on the
resident call system, when the supervisory nurse is not on the scene.
(6) The facility must maintain records of all
individuals used by the facility as feeding assistants. For each individual, such
records shall include, but not be limited to:
(i) a copy of the feeding assistant training
program certificate of completion;
(ii) the dates and results of evaluations of
the feeding assistant; and
(iii) the
dates and subject topics of any additional training related to the individual's
role as a feeding assistant, and a record of the individual's demonstrated
competency in the activities and/or skills toward which the training was
focused.
(f)
Non-Compliance with Staffing Standards.
(1)
Compliance with the minimum nursing staff requirements set forth in paragraph (2)
of subdivision (b) of this Section shall be determined on a quarterly basis, as
determined by the Department, by comparing the daily average of the number of
hours provided per resident, per day, using the most recent data available from
the federal Centers for Medicare and Medicaid Services payroll based journal and
the facility's average daily census on a daily basis.
(i) The Department shall initially determine
whether a facility is compliant or non-compliant with the minimum nursing staff
requirements by conducting the following three assessments:
(a) Assessing whether the total daily staffing
hours provided per resident by nurse aides (only from January first, two thousand
twenty-two through December thirty-first, two thousand twenty-two), certified
nurse aides, licensed practical nurses, or registered nurses fell below 3.5 hours
of care per resident on average over the course of the quarter; and
(b) Assessing whether at least 2.2 hours of
care per resident per day was provided by a certified nurse aide or a nurse aide
(only from January first, two thousand twenty-two through December thirty-first,
two thousand twenty-two) on average over the course of the quarter; and
(c) Assessing whether at least 1.1 hours of
care per resident per day was provided by a registered professional nurse or
licensed practical nurse on average over the course of the
quarter.
(ii) A facility
that, on average over the course of the quarter, fell below the hourly
requirements set forth in clauses (a) through (c) of subparagraph (i) will be
considered non-compliant for the purposes of this Section. Any facility that the
Department finds non-compliant shall have progressive penalties assessed based
upon the number of days per quarter in which the daily staffing hours provided
per resident fell below the minimum hourly requirements set forth in paragraph
(2) of subdivision (b) of this Section.
(iii) For the purposes of determining
compliance, an individual shall not be counted while performing administrative
services, as defined in the Centers for Medicare and Medicaid Services payroll
based journal for long-term care facilities. Further, individuals who are
attending training, either onsite or offsite, and are not available to perform
their primary job duties shall not be counted for purposes of determining
compliance with the minimum daily staffing hours.
(2) Penalties.
(i) The Department shall impose a penalty of up
to two thousand (2,000) dollars per day for each day in a quarter that a facility
fails to comply with the minimum nursing staff requirements set forth in
paragraph (2) of subdivision (b) of this Section, unless mitigating or
aggravating factors exist.
(ii)
Mitigating Factors. The Department may reduce penalties in a quarter that a
facility is non-compliant, if the Department determines, in its sole discretion,
that any of the following mitigating circumstances existed during the period of
non-compliance:
(a) Extraordinary circumstances
faced the facility. For the purposes of this clause, extraordinary circumstances
shall mean that the facility experienced a natural disaster; a national emergency
affecting the facility has been officially declared; a State or municipal
emergency affecting the facility has been declared pursuant to Article 2-B of the
Executive Law; or the facility experienced a catastrophic event that caused
physical damage to the facility or impaired the ability of facility personnel to
access the facility. Provided, however, that the facility must first demonstrate,
to the satisfaction of the Department, that such extraordinary circumstances
could not have been prevented or mitigated through effective implementation of
the facility's pandemic emergency plan, prepared pursuant to Section
2803(12) of the Public
Health Law, and that the facility complied with the disaster and emergency
preparedness requirements set forth in Section
415.26(f) of this
Part; or
(b) An acute labor supply
shortage of nurse aides, certified nurse aides, licensed practical nurses, or
registered nurses exists in the Metropolitan and Nonmetropolitan Area in which
the facility is located, as such areas are defined by the federal Bureau of Labor
Statistics.
(1) For the purposes of determining
whether a facility was located in an area experiencing an acute labor supply
shortage during the period of noncompliance, the Commissioner shall issue a
determination on a quarterly basis as to whether an acute labor supply shortage
of nurse aides, certified nurse aides, licensed practical nurses, or registered
nurses exists in any Metropolitan or Nonmetropolitan Area of New York State. Such
determination shall be made in consultation with the New York State Department of
Labor and shall take into account job availability metrics developed by the New
York State Department of Labor, which may include but is not limited to the list
of job openings in New York State.
(2) The fact that the facility is located in an
area experiencing an acute labor supply shortage pursuant to this clause shall
not serve as a mitigating factor unless the facility has demonstrated, to the
satisfaction of the Department, reasonable attempts to procure sufficient
staffing during the period of non-compliance, notwithstanding the acute labor
supply shortage. Reasonable attempts may include, but not be limited to,
incentivizing new personnel through increased wage and benefit offers and
searching for personnel outside of the Metropolitan and Nonmetropolitan Area in
which the facility is located;
(3)
The fact that the facility is located in an area experiencing an acute labor
supply shortage pursuant to this clause shall not serve as a mitigating factor
unless the facility has demonstrated, to the satisfaction of the Department, that
it has taken steps over the course of the quarter to ensure resident health and
safety notwithstanding any labor supply shortage, including but not limited to
discontinuing admissions or transferring residents to another appropriate
facility; or
(c) A
verifiable union dispute exists between the facility and nurse aides, certified
nurse aides, licensed practical nurses, or registered nurses employed or
contracted by such facility, resulting in a labor shortage at the
facility.
(g) Eligibility for Funding to Comply with
Minimum Nursing Staff Requirements. The Department shall determine which nursing
homes are anticipated to be in compliance with Section
2828 of the
Public Health Law based on the most current, available Residential Health Care
Facility cost report data, or such other source of cost information as the
Department shall identify. Pursuant to methodology set forth in the current
Medicaid State Plan Amendment, the Department shall determine whether such
nursing homes must expend additional funds to comply with this Section, beyond
any costs necessary to comply with Section
2828 of the
Public Health Law. Any such nursing home that the Department finds will be
required to expend additional funds to comply with this Section shall be eligible
to receive from the Department additional funds, subject to availability from the
New York State Division of the Budget, to hire nursing staff necessary to achieve
the minimum nursing staff requirements set forth in paragraph (2) of subdivision
(b) of this Section.