S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3432

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 18, 2009
                               ___________

Introduced  by  Sens.  MAZIARZ,  MORAHAN,  STACHOWSKI  -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Health

AN ACT to amend the public health law and the education law, in relation
  to a safe patient handling policy for health care facilities

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 29-D of the public health law is amended by  adding
a new title 4 to read as follows:
                                 TITLE 4
                      SAFE PATIENT HANDLING POLICY
SECTION 2999-G. LEGISLATIVE INTENT.
        2999-H. DEFINITIONS.
        2999-I. NEW YORK STATE SAFE PATIENT HANDLING TASK FORCE.
        2999-J. STATEWIDE SAFE PATIENT HANDLING POLICY.
        2999-K. HEALTH CARE FACILITY SAFE PATIENT HANDLING COMMITTEES.
        2999-L. ENFORCEMENT.
  S  2999-G.  LEGISLATIVE  INTENT.  THE  LEGISLATURE  HEREBY  FINDS  AND
DECLARES THAT IT IS IN THE PUBLIC INTEREST TO  ENACT  A  STATEWIDE  SAFE
PATIENT  HANDLING  POLICY  FOR HEALTH CARE FACILITIES IN NEW YORK STATE.
WITHOUT SAFE PATIENT HANDLING LEGISLATION,  IT  IS  PREDICTED  THAT  THE
DEMAND  FOR  NURSING  SERVICES  WILL  EXCEED THE SUPPLY BY NEARLY THIRTY
PERCENT BY THE YEAR TWO THOUSAND TWENTY THUS DECREASING THE  QUALITY  OF
HEALTH  CARE  IN  NEW  YORK STATE.   THERE ARE MANY BENEFITS THAT CAN BE
DERIVED FROM SAFE PATIENT HANDLING PROGRAMS.   PATIENTS BENEFIT  THROUGH
IMPROVED  QUALITY  OF  CARE  AND QUALITY OF LIFE BY REDUCING THE RISK OF
FALLS, BEING DROPPED, FRICTION BURNS, SKIN TEARS AND BRUISES. CAREGIVERS
BENEFIT FROM THE REDUCED RISK OF CAREER ENDING AND DEBILITATING INJURIES
LEADING TO INCREASED MORALE, IMPROVED JOB SATISFACTION AND LONGEVITY  IN
THE  PROFESSION.  HEALTH CARE FACILITIES REALIZE A QUICK RETURN ON THEIR
INVESTMENT THROUGH REDUCED WORKERS' COMPENSATION MEDICAL  AND  INDEMNITY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04748-01-9
              

S. 3432                             2

COSTS,  REDUCED  LOST WORKDAYS AND IMPROVED RECRUITMENT AND RETENTION OF
CAREGIVERS. ALL OF THIS WILL LEAD TO FISCAL IMPROVEMENT IN  HEALTH  CARE
IN NEW YORK STATE.
  S 2999-H. DEFINITIONS. FOR THE PURPOSES OF THIS TITLE:
  1.  "HEALTH  CARE  FACILITY"  SHALL  MEAN ANY INDIVIDUAL, PARTNERSHIP,
ASSOCIATION, CORPORATION, LIMITED LIABILITY COMPANY  OR  ANY  PERSON  OR
GROUP  OF  PERSONS  ACTING DIRECTLY OR INDIRECTLY ON BEHALF OF OR IN THE
INTEREST OF THE EMPLOYER, WHICH  PROVIDES  HEALTH  CARE  SERVICES  IN  A
FACILITY  LICENSED OR OPERATED PURSUANT TO ARTICLE TWENTY-EIGHT, TWENTY-
EIGHT-A OR THIRTY-SIX OF THIS CHAPTER, OR THE MENTAL  HYGIENE  LAW,  THE
EDUCATION  LAW OR THE CORRECTION LAW, INCLUDING ANY FACILITY OPERATED BY
THE STATE, A POLITICAL SUBDIVISION OR A PUBLIC  BENEFIT  CORPORATION  AS
DEFINED BY SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW.
  2.  "NURSE"  SHALL  MEAN A REGISTERED PROFESSIONAL NURSE OR A LICENSED
PRACTICAL NURSE AS DEFINED BY ARTICLE ONE  HUNDRED  THIRTY-NINE  OF  THE
EDUCATION LAW.
  3.  "DIRECT  CARE  WORKER"  SHALL  MEAN  ANY EMPLOYEE OF A HEALTH CARE
FACILITY THAT IS RESPONSIBLE FOR PATIENT HANDLING OR PATIENT  ASSESSMENT
AS  A  REGULAR  OR  INCIDENTAL  PART  OF THEIR EMPLOYMENT, INCLUDING ANY
LICENSED OR UNLICENSED HEALTH CARE WORKER.
  4. "EMPLOYEE REPRESENTATIVE" SHALL MEAN THE  RECOGNIZED  OR  CERTIFIED
COLLECTIVE  BARGAINING  AGENT  FOR  NURSES  OR  DIRECT CARE WORKERS OF A
HEALTHCARE FACILITY.
  5. "SAFE PATIENT HANDLING" SHALL MEAN THE USE OF ENGINEERING CONTROLS,
LIFTING AND TRANSFER AIDS, OR ASSISTIVE DEVICES,  BY  NURSES  OR  DIRECT
CARE  WORKERS, INSTEAD OF MANUAL LIFTING TO PERFORM THE ACTS OF LIFTING,
TRANSFERRING AND REPOSITIONING OF HEALTH CARE PATIENTS AND RESIDENTS.
  6. "SAFE PATIENT HANDLING PROGRAM" SHALL INCLUDE:
  (A) A WRITTEN POLICY STATEMENT; AND
  (B) MANAGEMENT COMMITMENT AND EMPLOYEE INVOLVEMENT; AND
  (C) COMMITTEES; AND
  (D) RISK ASSESSMENTS; AND
  (E) INCIDENT INVESTIGATION; AND
  (F) PROCUREMENT OF ENGINEERING CONTROLS, LIFTING AND TRANSFER AIDS  OR
ASSISTIVE DEVICES TO ENSURE SAFE PATIENT HANDLING; AND
  (G) EMPLOYEE TRAINING AND EDUCATION ON SAFE PATIENT HANDLING; AND
  (H) PROGRAM EVALUATION AND MODIFICATION.
  S  2999-I.  NEW  YORK STATE SAFE PATIENT HANDLING TASK FORCE. 1. A NEW
YORK STATE SAFE PATIENT HANDLING TASK FORCE IS HEREBY CREATED WITHIN THE
DEPARTMENT.  SUCH TASK FORCE SHALL CONSIST OF A TOTAL OF ELEVEN  MEMBERS
AND  SHALL  INCLUDE THE COMMISSIONER OR HIS OR HER DESIGNEE; THE COMMIS-
SIONER OF LABOR OR HIS OR HER DESIGNEE; THREE MEMBERS APPOINTED  BY  THE
GOVERNOR,  TWO  SUCH  MEMBERS  SHALL  BE  REPRESENTATIVES OF HEALTH CARE
ORGANIZATIONS, ONE SUCH MEMBER SHALL BE FROM  AN  EMPLOYEE  ORGANIZATION
REPRESENTING NURSES AND ONE SUCH MEMBER SHALL BE FROM AN EMPLOYEE ORGAN-
IZATION  REPRESENTING  DIRECT  CARE  WORKERS;  TWO SUCH MEMBERS SHALL BE
CERTIFIED ERGONOMIST EVALUATION SPECIALISTS; TWO MEMBERS TO BE APPOINTED
BY THE TEMPORARY PRESIDENT OF THE SENATE, WHO SHALL  HAVE  EXPERTISE  IN
FIELDS  OR  DISCIPLINE RELATED TO HEALTH CARE OR OCCUPATIONAL SAFETY AND
ONE SUCH APPOINTEE MUST BE FROM AN ORGANIZATION  REPRESENTING  EITHER  A
NURSE  OR DIRECT CARE WORKER; TWO MEMBERS TO BE APPOINTED BY THE SPEAKER
OF THE ASSEMBLY, WHO  SHALL  HAVE  EXPERTISE  IN  FIELDS  OR  DISCIPLINE
RELATED  TO  HEALTH  CARE  OR OCCUPATIONAL SAFETY AND ONE SUCH APPOINTEE
MUST BE FROM AN ORGANIZATION REPRESENTING EITHER A NURSE OR DIRECT  CARE
WORKER; ONE MEMBER TO BE APPOINTED BY THE MINORITY LEADER OF THE SENATE,
WHO  SHALL HAVE EXPERTISE IN FIELDS OR DISCIPLINE RELATED TO HEALTH CARE

S. 3432                             3

OR OCCUPATIONAL SAFETY; AND ONE MEMBER APPOINTED BY THE MINORITY  LEADER
OF  THE  ASSEMBLY,  WHO  SHALL  HAVE  EXPERTISE  IN FIELDS OR DISCIPLINE
RELATED TO HEALTH CARE OR OCCUPATIONAL SAFETY.
  2.  TASK  FORCE  MEMBERS  SHALL  RECEIVE  NO  COMPENSATION  FOR  THEIR
SERVICES, BUT SHALL BE REIMBURSED  FOR  ACTUAL  AND  NECESSARY  EXPENSES
INCURRED IN THE PERFORMANCE OF THEIR DUTIES.
  3.  THE  TASK  FORCE  SHALL BE APPOINTED NO LATER THAN JULY FIRST, TWO
THOUSAND TEN AND SHALL SERVE FOR A PERIOD OF TWO YEARS; ANY VACANCIES ON
THE TASK FORCE SHALL BE FILLED IN THE MANNER PROVIDED FOR IN THE INITIAL
APPOINTMENT.
  4. THE CHAIRPERSON OF THE TASK FORCE SHALL BE THE COMMISSIONER OR  HIS
OR HER DESIGNEE.
  5. THE TASK FORCE SHALL MEET NO LESS THAN THREE TIMES A YEAR.
  6.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW, A MAJORITY OF THE
MEMBERS OF THE TASK FORCE THEN IN OFFICE SHALL CONSTITUTE A  QUORUM  FOR
THE  TRANSACTION OF BUSINESS OR THE EXERCISE OF POWER OR FUNCTION OF THE
TASK FORCE. AN ACT, DETERMINATION OR DECISION OF  THE  MAJORITY  OF  THE
MEMBERS  OF THE TASK FORCE SHALL BE HELD TO BE THE ACT, DETERMINATION OR
DECISION OF THE TASK FORCE.
  7. POWERS AND DUTIES. THE TASK FORCE ACT SHALL:
  (A) PREPARE A POLICY STATEMENT REQUIRING A COMPREHENSIVE SAFE  PATIENT
HANDLING  PROGRAM  TO  BE  IMPLEMENTED AT ALL HEALTH CARE FACILITIES, AS
DEFINED IN SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED  NINETY-NINE-H
OF  THIS TITLE.  THE POLICY STATEMENT SHALL INCLUDE THE REQUIREMENTS FOR
DEVELOPING AND IMPLEMENTING AN EFFECTIVE SAFE PATIENT  HANDLING  PROGRAM
THAT  SHALL INCLUDE ALL ELEMENTS SPECIFIED IN SUBDIVISION SIX OF SECTION
TWENTY-NINE HUNDRED NINETY-NINE-H OF THIS TITLE;
  (B) REVIEW  EXISTING  SAFE  PATIENT  HANDLING  PROGRAMS  OR  POLICIES,
INCLUDING  DEMONSTRATION PROGRAMS PREVIOUSLY AUTHORIZED BY CHAPTER SEVEN
HUNDRED THIRTY-EIGHT OF THE LAWS OF TWO THOUSAND FIVE;
  (C) CONSULT WITH  ANY  ORGANIZATION,  EDUCATIONAL  INSTITUTION,  OTHER
GOVERNMENT ENTITY OR AGENCY OR PERSON;
  (D) CONDUCT PUBLIC HEARINGS, AS IT DEEMS NECESSARY;
  (E)  IDENTIFY OR DEVELOP TRAINING MATERIALS AND PROCEDURES WITH REGARD
TO THE EQUIPMENT OR TECHNOLOGY REQUIRED BY THE STATEWIDE POLICY;
  (F) REVIEW RULES AND REGULATIONS PRIOR TO ADOPTION BY THE DEPARTMENT;
  (G) REVIEW AND UPDATE THE POLICY STATEMENT ON A BI-ANNUAL BASIS;
  (H) ALL STATE DEPARTMENTS, COMMISSIONS, AGENCIES OR PUBLIC AUTHORITIES
SHALL PROVIDE AND ADVISE IN A TIMELY MANNER  AND  OTHERWISE  ASSIST  THE
TASK FORCE WITH ITS WORK; AND
  (I) SUBMIT A REPORT IDENTIFYING SAFE PATIENT HANDLING PROGRAM ELEMENTS
AND  RECOMMENDATIONS  OF  SAFE  PATIENT LIFTING EQUIPMENT, TECHNIQUES OR
DEVICES TO THE COMMISSIONER BY JULY FIRST, TWO THOUSAND ELEVEN.
  S 2999-J. STATEWIDE SAFE PATIENT HANDLING POLICY. 1. THE COMMISSIONER,
IN CONSULTATION WITH THE TASK FORCE, SHALL PROMULGATE  RULES  AND  REGU-
LATIONS  FOR  A  STATEWIDE  SAFE PATIENT HANDLING POLICY FOR HEALTH CARE
FACILITIES COVERED BY THIS TITLE. SUCH POLICY SHALL BE MADE AVAILABLE TO
ALL FACILITIES COVERED BY THIS TITLE ON OR  BEFORE  JANUARY  FIRST,  TWO
THOUSAND TWELVE.
  2.  THE STATEWIDE SAFE PATIENT HANDLING POLICY SHALL INCLUDE STANDARDS
WITH REGARD TO:
  (A) THE EQUIPMENT, DEVICES OR TECHNOLOGY TO BE  USED  BY  A  NURSE  OR
DIRECT CARE WORKER WHO IS ENGAGED IN PATIENT HANDLING;
  (B)  THE  RATIO OF SUCH EQUIPMENT OR TECHNOLOGY BASED UPON THE TYPE OF
FACILITY, THE NUMBER OF BEDS IN A FACILITY, THE NUMBER  OF  PATIENT-HAN-

S. 3432                             4

DLING  TASKS, TYPES OF CARE UNITS, PATIENT POPULATIONS, AND PATIENT CARE
AREAS;
  (C)  THE  MINIMUM  NUMBER  OF  DEVICES TO ENSURE THAT CURRENT ASSESSED
HAZARDS ARE ELIMINATED OR MITIGATED;
  (D) ESTABLISHING  PROCEDURES  FOR  THE  SUBMISSION  AND  REPORTING  OF
COMPLIANCE BY EACH HEALTH CARE FACILITY COVERED BY THIS TITLE; AND
  (E)  ESTABLISHING  PROCEDURES  FOR COMPLAINTS OR VIOLATIONS, INCLUDING
THE FILING PROCESS, REVIEW, AND EVALUATION AND CORRECTIVE ACTION OF SUCH
COMPLAINTS.
  3. FACILITIES COVERED UNDER THIS TITLE SHALL  FILE  A  PLAN  WITH  THE
DEPARTMENT  BY JULY FIRST, TWO THOUSAND TWELVE DETAILING THEIR POLICY TO
BE IN COMPLIANCE WITH THE RULES AND REGULATIONS OF  THE  STATEWIDE  SAFE
PATIENT  HANDLING POLICY THAT MUST BE ACCEPTED BY THE DEPARTMENT BY JULY
FIRST, TWO THOUSAND THIRTEEN.
  S 2999-K. HEALTH CARE FACILITY SAFE PATIENT  HANDLING  COMMITTEES.  1.
EACH HEALTH CARE FACILITY MUST ESTABLISH A SAFE PATIENT HANDLING COMMIT-
TEE  EITHER  BY  CREATING  A  NEW  COMMITTEE OR ASSIGNING THE POWERS AND
DUTIES TO AN EXISTING COMMITTEE.  AT LEAST ONE-HALF OF  THE  MEMBERS  OF
THE  SAFE  PATIENT  HANDLING COMMITTEE SHALL BE FRONTLINE NON-MANAGERIAL
NURSES OR DIRECT CARE WORKERS. AT LEAST ONE NON-MANAGERIAL NURSE AND ONE
NON-MANAGERIAL DIRECT CARE WORKER MUST BE ON THE SAFE  PATIENT  HANDLING
COMMITTEE.  THE  COMMITTEE SHALL HAVE CO-CHAIRS WITH ONE FROM MANAGEMENT
AND ONE FRONTLINE NON-MANAGERIAL NURSE OR DIRECT CARE WORKER.
  2. THE SAFE PATIENT HANDLING COMMITTEE SHALL:  (A)  SET  CRITERIA  FOR
EVALUATION  OF  PATIENTS AND/OR RESIDENTS TO DETERMINE WHICH LIFT AND/OR
REPOSITIONING EQUIPMENT, DEVICES OR TECHNOLOGY ARE TO  BE  USED  AND  TO
PERFORM  RISK  ASSESSMENTS  OF  THE  ENVIRONMENT,  JOB TASKS AND PATIENT
NEEDS;
  (B) ENSURE LIFT AND/OR REPOSITIONING EQUIPMENT IS  SET  UP,  USED  AND
MAINTAINED ACCORDING TO MANUFACTURER'S INSTRUCTIONS;
  (C) PROVIDE INITIAL AND ON-GOING YEARLY TRAINING AND EDUCATION ON SAFE
PATIENT  HANDLING FOR CURRENT EMPLOYEES AND NEW HIRES. ENSURE RETRAINING
FOR THOSE FOUND TO BE DEFICIENT IS SCHEDULED  AS  NEEDED  AND  DOES  NOT
AFFECT CURRENT EMPLOYMENT STATUS OF THE AFFECTED EMPLOYEE OR EMPLOYEES;
  (D)  SET UP AND UTILIZE A PROCESS FOR INCIDENT INVESTIGATION AND AFTER
ACTION REVIEW WHICH INCLUDES A PLAN OF CORRECTION AND IMPLEMENTATION  OF
CONTROLS;
  (E)  MAKE  RECOMMENDATIONS  FOR THE ACQUISITION OF EQUIPMENT OR PROCE-
DURES BEYOND THE MINIMUM STATE RECOMMENDATIONS; AND
  (F) PERFORM, AT MINIMUM, AN ANNUAL PROGRAM ASSESSMENT AND EVALUATION.
  S 2999-L. ENFORCEMENT. 1. ANY NURSE OR DIRECT CARE WORKER OR  EMPLOYEE
REPRESENTATIVE  WHO  BELIEVES THE FACILITY HAS NOT MET THE STANDARDS SET
FORTH IN THIS TITLE SHALL BRING THE MATTER TO THE ATTENTION OF A  SUPER-
VISOR  IN  THE FORM OF A WRITTEN NOTICE AND SHALL AFFORD THE HEALTH CARE
FACILITY A REASONABLE OPPORTUNITY TO CORRECT SUCH DEFICIENCIES.
  2. SUCH COMPLAINT SHALL NOT APPLY  WHERE  IMMINENT  DANGER  OR  THREAT
EXISTS TO THE SAFETY OF A SPECIFIC NURSE OR DIRECT CARE WORKER OR TO THE
GENERAL  HEALTH  OF A SPECIFIC PATIENT AND WHEN THE NURSE OR DIRECT CARE
WORKER OR EMPLOYEE REPRESENTATIVE BELIEVES IN GOOD FAITH THAT  REPORTING
WILL NOT RESULT IN CORRECTIVE ACTION.
  3.  IN  THE  EVENT  THE  HEALTH CARE FACILITY DOES NOT TAKE CORRECTIVE
ACTION WITHIN SIXTY DAYS OR IN THE EVENT SUCH NURSE OR DIRECT CARE WORK-
ER BELIEVES THAT AN IMMEDIATE DANGER OR THREAT EXISTS TO  SUCH  EMPLOYEE
OR TO THE GENERAL HEALTH OF A SPECIFIC PATIENT, SUCH EMPLOYEE SHALL HAVE
THE  RIGHT TO REFUSE TO ENGAGE IN PATIENT HANDLING UNTIL THE HEALTH CARE
FACILITY HAS ADEQUATELY  ADDRESSED  THE  SPECIFIC  IMMEDIATE  DANGER  OR

S. 3432                             5

THREAT TO SUCH EMPLOYEE OR PATIENT. UPON REFUSAL, THE NURSE, DIRECT CARE
WORKER  OR EMPLOYEE REPRESENTATIVE SHALL FILE A COMPLAINT TO THE DEPART-
MENT IN THE MANNER SET FORTH IN  THE  STATEWIDE  SAFE  PATIENT  HANDLING
POLICY.
  4.  NO  EMPLOYER  SHALL  TAKE  RETALIATORY ACTION AGAINST ANY NURSE OR
DIRECT CARE WORKER FOR RAISING CONCERNS OR ISSUES REGARDING SAFE PATIENT
HANDLING, FILING A COMPLAINT OR REFUSING TO ENGAGE IN PATIENT HANDLING.
  5. NURSES AND DIRECT CARE WORKERS, AS DEFINED IN  SECTION  TWENTY-NINE
HUNDRED  NINETY-NINE-H  OF  THIS TITLE SHALL BE CONSIDERED EMPLOYEES FOR
THE PURPOSES OF SECTION SEVEN HUNDRED FORTY-ONE OF THE LABOR LAW.
  6. THE DEPARTMENT AND THE DEPARTMENT OF LABOR SHALL PUBLISH  AND  MAKE
PUBLIC WHICH HEALTH CARE FACILITIES ARE IN COMPLIANCE WITH THE STATEWIDE
SAFE PATIENT HANDLING POLICY.
  S  2.  The  education law is amended by adding a new section 6510-f to
read as follows:
  S 6510-F. STATE SAFE PATIENT HANDLING POLICY.   1. THE  REFUSAL  OF  A
LICENSED  PRACTICAL NURSE OR A REGISTERED NURSE TO COMPLY WITH THE STATE
SAFE PATIENT HANDLING POLICY OR A FACILITY'S SAFE PATIENT HANDLING POLI-
CY SHALL NOT BE CONSIDERED PROFESSIONAL MISCONDUCT.  THE  REFUSAL  OF  A
LICENSED  PRACTICAL  NURSE  OR  A  REGISTERED NURSE TO ENGAGE IN PATIENT
HANDLING SHALL NOT CONSTITUTE PATIENT ABANDONMENT  OR  NEGLECT  IF  SUCH
NURSE, HAS IN A MANNER CONSISTENT WITH THE RULES AND REGULATIONS PROMUL-
GATED  BY  TITLE FOUR OF ARTICLE TWENTY-NINE-D OF THE PUBLIC HEALTH LAW,
REFUSED A PATIENT HANDLING ASSIGNMENT AND FILED  A  COMPLAINT  WITH  THE
DEPARTMENT.
  2.  THE  REFUSAL  OF  A  LICENSED  OR UNLICENSED HEALTH CARE WORKER TO
ENGAGE IN PATIENT HANDLING NOT CONSISTENT WITH THE  STATE  SAFE  PATIENT
HANDLING  POLICY  OR A FACILITY'S SAFE PATIENT HANDLING POLICY SHALL NOT
BE CONSIDERED PROFESSIONAL MISCONDUCT. THE  REFUSAL  OF  A  LICENSED  OR
UNLICENSED  HEALTH  CARE  WORKER TO ENGAGE IN PATIENT HANDLING SHALL NOT
CONSTITUTE PATIENT ABANDONMENT OR NEGLECT  IF  SUCH  WORKER,  HAS  IN  A
MANNER  CONSISTENT  WITH  THE RULES AND REGULATIONS PROMULGATED BY TITLE
FOUR OF ARTICLE TWENTY-NINE-D  OF  THE  PUBLIC  HEALTH  LAW,  REFUSED  A
PATIENT HANDLING ASSIGNMENT AND FILED A COMPLAINT WITH THE DEPARTMENT.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.