Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 22, 2021, Governor Andrew M. Cuomo signed legislation (S.1168-A / A.108-B) requiring the establishment of clinical staffing committees in general hospitals. The staffing committees will be composed of registered nurses, licensed practical nurses, ancillary staff members who provide direct patient care and hospital administrators. They will be charged with developing staffing plans that include specific guidelines for how many patients are to be assigned to each nurse and how many ancillary staff are assigned to each unit. Although the new law stops short of mandating specific staffing ratios, the New York State Nurses Association (NYSNA) claims the legislation will effectively establish mandated staffing ratios for its members.1 Judy Sheridan-Gonzales, president of NYSNA, says the law “doesn’t state that ratios must be stipulated, but inevitably that’s what it means.”2
Notably, the legislation affects both union and non-union represented hospitals. Key components include:
Establishment, and Composition of Clinical Staffing Committees
The legislation requires each general hospital3 to establish and maintain a clinical staffing committee, either by creating a new committee or assigning prescribed functions to an existing committee, no later than January 1, 2022. Where a collective bargaining agreement provides for a staffing committee, the functions required by the statute will be incorporated into that labor committee.
At least half the members of the clinical staffing committee shall be registered nurses, licensed practical nurses and ancillary members of the frontline team providing or supporting direct patient care. Up to half the members shall be selected by 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 employee committee members shall be according to their respective collective bargaining agreements if one is in effect for their bargaining unit. If there is no applicable collective bargaining agreement, the employee members of the clinical staffing committee shall be selected by their peers, although the legislation does not prescribe a specific selection process. 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.
The legislation states that employee participation in the clinical staffing committee shall be on scheduled work time and compensated at the appropriate rate of pay. In addition, committee members must 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 because of their committee responsibilities.
Responsibilities of the Clinical Staffing Committee
The primary responsibility of the clinical staffing committee is to develop specific staffing plans for each patient care unit and work shift. The legislation states that “[s]taffing plans shall include specific guidelines for 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.”
Factors to be considered and incorporated in the development of the plan include, but are not limited to:
- Census, including total numbers of patients on the unit on each shift and activity such as patient discharges, admissions, and transfers;
- Measures of acuity and intensity of all patients and nature of the care to be delivered on each unit and 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 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;
- Mechanisms and procedures to provide for one-to-one patient observation, when needed, for patients on psychiatric or other units as appropriate;
- Other special characteristics of the unit or community, including 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, which could include measures to improve patient throughput;
- 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;
- 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 hospital and a representative of the nursing or ancillary staff;
- The nursing quality indicators required by the New York State Department of Health (DOH);
- Hospital finances and resources; and
- Provisions for limited short-term adjustments made by appropriate 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 conduct a semiannual review of the staffing plan, and review, assess and respond to complaints regarding potential violations of the adopted staffing plans. Notably, the clinical staffing plan must comply with and incorporate any minimum staffing levels provided for in a collective bargaining agreement.
Procedure for Adoption of the Clinical Staffing Plan and Submission to the State
The clinical staffing committee shall produce the hospital’s staffing plan by July 1 of each year, starting with July 1, 2023.
The clinical staffing plan shall be developed and adopted by a consensus of the clinical staffing committee. For 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).
Hospitals must 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 (CEO) of the hospital shall use the CEO’s discretion to adopt a plan or partial plan for which there is no consensus. In this case, the CEO shall provide a written explanation of the elements of the clinical staffing plan on which the committee could not agree, including the final written proposals from the two parties and their rationales. However, the CEO cannot fail to include in the adopted plan any staffing-related terms and conditions of the plan that have previously been adopted through any applicable collective bargaining agreement.
The plan submitted to the DOH must include a written explanation from the CEO and written proposals from the two parties regarding elements on which the committee did not agree. The submitted staffing plan also needs to include data, from the previous year, on the frequency and duration of variations from the adopted clinical staffing plan, the number of complaints related to the staffing plan, and unresolved complaints submitted to the committee. The DOH will then post the plan as part of each hospital’s health profile on the DOH website by July 31 of each year.
Each 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 and the relevant clinical staffing.
Employees and/or collective bargaining representatives may report to the clinical staffing committee any variations where the staffing assignment in a patient care unit is not in accordance with the adopted staffing plan and may also make a complaint to the committee based on the variations.
Per the legislation, the clinical staffing committee will need to develop a process to examine, respond to, and track staffing complaints. The clinical staffing committee may by consensus determine a complaint resolved or dismissed.
The legislation states that the hospital shall not retaliate or “engage in any form of intimidation” against an employee for performing any duties or responsibilities in connection with the clinical staffing committee or against an employee, patient or other individuals who notifies the clinical staffing committee or the hospital administration of the individual’s staffing concern.
Investigations & Civil Penalties
The DOH will have authority to investigate potential violations of the legislation following the receipt of a complaint, with supporting evidence, of failure to:
- Form or establish a clinical staffing committee;
- Adopt all of part of a clinical staffing plan approved by a consensus of the clinical staffing committee;
- Conduct a semiannual review of a clinical staffing plan; or
- Submit to the DOH a clinical staffing plan on an annual basis and any updates.
If the DOH determines there has been a violation, it shall require the hospital to submit a corrective action plan within 45 days of the presentation of the finding from the DOH. In the event the hospital fails to submit a corrective action plan or fails to comply with its corrective action plan, the DOH may impose a civil penalty against the hospital for each day until the hospital submits or implements a corrective plan and/or takes other action directed by the DOH.
For years health care unions have sought to impose staffing ratios on hospitals through collective bargaining or legislation. The COVID-19 pandemic provided the momentum they needed to succeed. That the new legislation represents the culmination of organized labor’s long-term efforts to mandate staffing ratios in New York hospitals is acknowledged in the governor’s press release, which includes statements from NYSNA and 1199SEIU:
New York State Nurses Association Executive Director Pat Kane said, "COVID-19 devastated hospitals throughout New York State that weren't adequately prepared to handle a pandemic, and this critical legislation will require them to have plans for the future. We need to protect the vital nurses and doctors who do the important work to keep New Yorkers safe and healthy, and these new committees will include the frontline workers who gave so much to all of us during the pandemic. I thank Governor Cuomo for his leadership getting this legislation passed and look forward to more accountable and prepared hospitals throughout the state."
1199SEIU President George Gresham said, "COVID-19 laid bare the fact that New York's hospitals have been severely understaffed for quite some time. As we continue to battle this ongoing pandemic, and future health crises, it is imperative that facilities have the staffing levels needed to ensure quality care. This legislation improves working conditions at New York's hospitals by creating safe and effective staffing standards to keep our hospital care teams safe, and it also imposes strict penalties on facilities if the standards aren't met. We thank Governor Cuomo for standing up to ensure that safe, responsible staffing reform is now law in New York."
While the legislation does not itself impose specific staffing ratios, it mandates a clinical staffing committee process that must result in specific staffing plans for each patient care unit and work shift. The hospital will then be constrained to adhere to these staffing plans, as either employees or collective bargaining representatives may file complaints with the staffing committee about any failure to do so. If its staffing committee fails to respond or resolve a complaint, a hospital can be penalized by the DOH.
Hospitals, whether non-union or union, will be under heavy regulatory pressure to adhere to these requirements. Notably, when DOH determines whether a hospital has failed to comply with its obligation to adhere to a clinical staffing plan, it shall not be a defense that it was unable to secure sufficient staffing 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 . . . .” It remains to be seen how the onerous new obligations will affect existing labor-management relationships. Although the first staffing plan need not be submitted until July 1, 2023, the act itself takes effect immediately. Hospitals should promptly begin planning for the creation of committees and the development and implementation of the staffing plans.
1 California is the only state with mandated staffing ratios.
2 Hailey Mensik, New York passes safe staffing law for hospitals, nursing homes, Healthcaredive.com, June 22, 2021.
3 General hospital is defined as a hospital engaged in providing medical or medical and surgical services primarily to in-patients by or under the supervision of a physician on a 24-hour basis with provisions for admission or treatment of persons in need of emergency care and with an organized medical staff and nursing service, including facilities providing services relating to particular diseases, injuries, conditions or deformities. The term general hospital shall not include a residential health care facility, public health center, diagnostic center, treatment center, out-patient lodge, dispensary and laboratory or central service facility serving more than one institution. See NY Pub Health L 2801.