In continuing efforts to address problems exposed by the COVID-19 pandemic, on June 18, 2021, the Governor signed legislation (S.1168-A/A.108-B) into law to address an urgent public policy priority related to clinical staffing in hospitals licensed pursuant to Article 28 of the New York State Public Health Law.  This legislation requires the establishment of clinical staffing committees to create plans to more effectively distribute staff throughout general hospitals.  The staffing committees must consist of at least fifty percent (50%) of registered nurses, licensed practical nurses, and ancillary staff providing direct patient care, and up to fifty percent (50%) of hospital administrators, including, but not limited to, the chief financial officer, the chief nursing officer, and patient care unit directors or managers or their designees.  The staffing committees shall create staffing plans with guidelines as to how many patients are assigned to each nurse, as well as how each unit is staffed with ancillary staff, based on patient needs and ratios, matrices or grids, which shall be used as the primary component of the general hospital staffing budget, provided that such staffing plans meet or exceed the terms of existing collective bargaining agreements.

The staffing committees are charged with the development of the staffing plans, and hospitals shall then adopt and submit the plans to the New York State Department of Health (“DOH”) by July 1, 2022.  The staffing plans must be reviewed internally semiannually, updated annually by July 1, and implemented thereafter by January 1 of the following year.  In addition, the staffing plans must be posted in publicly conspicuous areas in each patient unit of hospitals, and on the DOH hospital profile website.  The staffing committees are also charged with review, assessment and response to complaints regarding potential violations, staffing variations or other concerns.

This legislation also extends investigatory powers to DOH, as well as the ability to issue civil penalties, taking mitigating factors into account, for failure of hospitals to comply with or timely correct violations of the staffing plans.  DOH is also required to submit an annual report by the end of the year, which shall include the number of complaints submitted to DOH, the number of investigations, and the costs for such investigations, if any.  Prior to the submission of the annual report by DOH, it shall be reviewed by a stakeholder workgroup consisting of hospital associations, nursing unions and other ancillary members of frontline workers.

This legislation also requires the creation of an independent advisory commission composed of nine (9) experts in staffing standards and quality of patient care:  three (3) in nursing, three (3) representing nursing unions, and three (3) representing general hospitals, with each group consisting of appointments by the Governor, Speaker of the Assembly and/or the Temporary President of the Senate.  The advisory commission shall meet from time to time to evaluate the effectiveness of the staffing committees, as well as to review the annual report submitted by DOH.  The advisory commission shall submit a report with its recommendations to improve working conditions and quality of care in hospitals.

While this legislation attempts to address claims that hospitals have been understaffed for some time, it does not address the fundamental issue of the acute nurse labor shortage, which has been exacerbated by COVID-19.  There are limited exceptions for “unforeseeable emergency circumstances” (such as officially declared national, state, or municipal emergencies; the activation of disaster plans; or any unforeseen disaster or other catastrophic event that immediately affects or increases the need for health care services), and “special considerations” to avoid unreasonable burdens on critical access hospitals and sole community hospitals, however, the legislation specifically prohibits the defense by hospitals of the inability to secure sufficient staff if the lack of staffing was “foreseeable” and could be “prudently planned for” or involved “routine nurse staffing needs,” such as typical staffing patterns, absenteeism, or time-off requests.

As with other recently enacted healthcare reforms, the long term effects of this legislation, and the ability of hospitals to comply with the staffing plans, remain to be seen.