S T A T E O F N E W Y O R K
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7704--A
2023-2024 Regular Sessions
I N A S S E M B L Y
June 6, 2023
___________
Introduced by M. of A. McMAHON -- read once and referred to the Commit-
tee on Higher Education -- recommitted to the Committee on Higher
Education in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the education law, in relation to expanding the
description of certain services which are not prohibited by statutes
governing the practice of nursing
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph (v) of paragraph (a) of subdivision 1 of
section 6908 of the education law is renumbered subparagraph (vi) and a
new subparagraph (v) is added to read as follows:
(V) TASKS PROVIDED BY A DIRECT SUPPORT STAFF IN NON-FACILITY BASED
PROGRAMS CERTIFIED OR APPROVED BY THE OFFICE FOR PEOPLE WITH DEVELOP-
MENTAL DISABILITIES, WHEN PERFORMED UNDER THE INSTRUCTION OF A SERVICE
RECIPIENT, FAMILY, OR HOUSEHOLD MEMBER AND PURSUANT TO A MEMORANDUM OF
UNDERSTANDING BETWEEN THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILI-
TIES AND THE DEPARTMENT, IN ACCORDANCE WITH AND PURSUANT TO AN AUTHOR-
IZED PRACTITIONER'S ORDERED CARE, PROVIDED THAT:
(1) A REGISTERED PROFESSIONAL NURSE DETERMINES, IN THEIR PROFESSIONAL
JUDGMENT, WHICH TASKS ARE TO BE PERFORMED BASED UPON:
(A) THE COMPLEXITY OF THE TASKS;
(B) THE SKILL AND EXPERIENCE OF THE DIRECT SUPPORT STAFF;
(C) THE HEALTH STATUS AND SPECIFIC CARE NEEDS OF THE SERVICE RECIPI-
ENT; AND
(D) THE SERVICE RECIPIENT, FAMILY, OR HOUSEHOLD MEMBER IS ABLE TO
EFFECTIVELY AND EFFICIENTLY COMMUNICATE WITH THE DIRECT SUPPORT STAFF
PROVIDING TASKS;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11654-05-4
A. 7704--A 2
(2) ONLY A DIRECT SUPPORT STAFF THAT HAS COMPLETED TRAINING AS
REQUIRED BY THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES MAY PERFORM TASKS PURSUANT TO THIS SUBPARAGRAPH;
(3) ONLY A SERVICE RECIPIENT, FAMILY, OR HOUSEHOLD MEMBER WHO HAS
COMPLETED TRAINING AS REQUIRED BY THE COMMISSIONER OF THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES MAY INSTRUCT A DIRECT SUPPORT
STAFF PURSUANT TO THIS SUBPARAGRAPH, PROVIDED THAT SUCH COURSE MAY BE
SATISFACTORILY COMPLETED THROUGH DISTANCE LEARNING METHODS WHICH EVINCE
THAT ALL PARTICIPANTS ARE IN ATTENDANCE FOR THE DURATION OF THE COURSE
AND ARE ABLE TO ASK QUESTIONS OF THE INSTRUCTOR;
(4) APPROPRIATE PROTOCOLS SHALL BE ESTABLISHED TO ENSURE SAFE ADMINIS-
TRATION OF MEDICATIONS;
(5) A DIRECT SUPPORT STAFF SHALL NOT ASSESS THE MEDICATION NEEDS OF AN
INDIVIDUAL;
(6) A DIRECT SUPPORT STAFF SHALL NOT BE AUTHORIZED TO PERFORM ANY
TASKS OR ACTIVITIES PURSUANT TO THIS SUBPARAGRAPH THAT ARE OUTSIDE THE
SCOPE OF PRACTICE OF A LICENSED PRACTICAL NURSE;
(7) A DIRECT SUPPORT STAFF SHALL NOT REPRESENT THEMSELVES, OR ACCEPT
EMPLOYMENT, AS A PERSON LICENSED TO PRACTICE NURSING UNDER THE
PROVISIONS OF THIS ARTICLE;
(8) A DIRECT SUPPORT STAFF PROVIDING MEDICATION ADMINISTRATION, TUBE
FEEDING, OR DIABETIC CARE SHALL BE SEPARATELY CERTIFIED, AND SHALL BE
RECERTIFIED ON AN ANNUAL BASIS;
(9) THE REGISTERED PROFESSIONAL NURSE SHALL ENSURE THAT THERE IS A
CONSUMER SPECIFIC MEDICATION SHEET FOR EACH MEDICATION THAT IS ADMINIS-
TERED;
(10) IN THE EVENT THAT A REGISTERED PROFESSIONAL NURSE DETERMINES THAT
THE SERVICE RECIPIENT, FAMILY, OR HOUSEHOLD MEMBER IS NOT CAPABLE OF
PROVIDING SUCH INSTRUCTION, A DIRECT SUPPORT STAFF SHALL NOT PROVIDE
TASKS PURSUANT TO THIS SUBPARAGRAPH. IN THE EVENT OF ANY DISAGREEMENT
BETWEEN A REGISTERED PROFESSIONAL NURSE AND A SERVICE RECIPIENT, FAMILY,
OR HOUSEHOLD MEMBER REGARDING SUCH CAPABILITY, THEN THE REGISTERED
PROFESSIONAL NURSE'S DETERMINATION SHALL PREVAIL;
(11) A DIRECT SUPPORT STAFF SHALL NOT PROVIDE ANY TASKS UNLESS A
REGISTERED PROFESSIONAL NURSE HAS DETERMINED THAT SUCH TASK MAY BE
PERFORMED;
(12) ADEQUATE NURSING SUPERVISION IS PROVIDED, INCLUDING TRAINING AND
PERIODIC INSPECTION OF PERFORMANCE OF THE TASKS, PROVIDED HOWEVER, THAT
THE SUPERVISING REGISTERED PROFESSIONAL NURSE SHALL VISIT INDIVIDUALS
RECEIVING SERVICES NO LESS THAN ONCE EVERY TWO WEEKS AND SHALL BE AVAIL-
ABLE BY TELEPHONE TO THE DIRECT SUPPORT STAFF TWENTY-FOUR HOURS A DAY,
SEVEN DAYS A WEEK, PROVIDED FURTHER, THAT A REGISTERED PROFESSIONAL
NURSE SHALL BE AVAILABLE TO VISIT THE SERVICE RECIPIENT AS NECESSARY TO
PROTECT THE HEALTH AND SAFETY OF SUCH RECIPIENT;
(13) NO DIRECT SUPPORT STAFF SHALL PERFORM TASKS UNDER THIS SUBPARA-
GRAPH UNTIL THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES AND
THE DEPARTMENT HAVE ENTERED INTO A MEMORANDUM OF UNDERSTANDING TO EFFEC-
TUATE THE PROVISIONS OF THIS SUBPARAGRAPH. THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES SHALL COMPLETE A CRIMINAL BACKGROUND CHECK
PURSUANT TO SECTION 16.33 OF THE MENTAL HYGIENE LAW AND AN AGENCY BACK-
GROUND CHECK PURSUANT TO SECTION 16.34 OF THE MENTAL HYGIENE LAW ON THE
DIRECT SUPPORT STAFF PRIOR TO THE COMMENCEMENT OF ANY PROVISION OF
SERVICE PROVIDED UNDER THIS SUBPARAGRAPH IF SUCH DIRECT SUPPORT STAFF IS
A NEW HIRE. LICENSED REGISTERED PROFESSIONAL NURSES AND INDIVIDUALS
PROVIDING DIRECT SUPPORT TASKS PURSUANT TO THIS SUBPARAGRAPH SHALL HAVE
A. 7704--A 3
PROTECTION PURSUANT TO SECTIONS SEVEN HUNDRED FORTY AND SEVEN HUNDRED
FORTY-ONE OF THE LABOR LAW, WHERE APPLICABLE; OR
§ 2. This act shall take effect eighteen months after it shall have
become a law, and shall expire and be deemed repealed July 1, 2029.
Effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized to be made and completed on or before such
effective date.