Getting into gear

The Hospital Clinical Staffing Committees and Disclosure Act (“staffing law”) calls for the formation of a Staffing Committee at every hospital. This body is key to reaching the goals of setting and enforcing safe staffing standards in all facilities throughout the state.

Every hospital must form a Staffing Committee that includes representatives of RNs and other frontline unit staff (LPNs, aides, other direct care and assistive personnel) and management (DON, finance, managers). Half the committee must consist of frontline staff.

An annual Staffing Plan

The Staffing Committee’s role is to prepare an annual Staffing Plan. With regard to RNs, the Plan must reflect the number of patients assigned to a nurse, broken down by unit and shift and cover all units at the hospital. Factors which must be considered and incorporated into the staffing plan include: census, admissions and discharges, acuity, skill mix, professional standards of care, availability of support personnel, physical layout of the unit, and coverage of breaks and benefit time.

Role of the Staffing Committee

The role of the Staffing Committee also entails overseeing implementation of and compliance with the Staffing Plan, as well as updating the Plan in the course of the year. Semiannual reviews against patient needs and outcomes keep the Plan current and accurate.

There is more to this essential role: the Staffing Committee resolves complaints over non-compliance and violations of the staffing plan.

As of this writing, over 3,400 members have joined the ranks of NYSNA’s Staffing Captains. The Captains provide staffing data on each unit and each shift — creating frontline nurse driven data critical to enforcing safe staffing. Under the Staffing Law, the Captains take on added importance: they will ensure compliance with the staffing terms set forth and agreed upon in the staffing plan, and will help define the basis for all state complaint filings. Our goal this year is for each facility to generate and use Staffing Captains reports regularly and that any of the reports which reflect unsafe staffing be accompanied by a Protest of Assignment, giving a complete picture of the unit.

NYSNA lobby visits

With a body of evidence about staffing, underscored in reports and required to be submitted to and posted by the NYS Department of Health, the stakes are raised during lobby visits. Is the legislator aware of legal violations in their district that they are obligated to enforce? All NYSNA lobby visits will now have source documents — state documents — that back up nurses’ claims.

Every staffing plan must be expressed in guidelines, ratios, grids or matrices that show specifically “how many patients are assigned to each registered nurse.” They must incorporate and include all staffing ratios, grids or other provisions of the collective bargaining agreement. A numerical representation of a nurse-to-patient number is the gold standard for all CBAs today, and now there is state law backing it. This is the key win of the law.

Failure to include a contractual staffing grid or ratio in the staffing plan violates state law. Staffing plans must comply with staffing laws or regulations, including the law prohibiting mandatory overtime.

The staffing law calls for NYS Department of Health to issue regulations for minimum ratios in ICUs by January 1, 2022. This regulation, like any new staffing law or regulation, must be referenced in a staffing plan and subject to compliance by management.

Enforcements under the staffing law

Here is a list of key enforcement mechanisms codified in the Staffing Law:

• If consensus cannot be reached on any part of the plan, an explanation of the position taken by each side must accompany the staffing plan
• Once a staffing plan is adopted it essentially becomes state law and hospitals must comply with the staffing plan under the law
• If NYSNA has ratios or grids in contracts, those staffing ratios also become state law — they must be included in the plans and the hospitals must comply with such ratios under the law
• If there are violations or variances from the adopted plan, Unions and allies can file a complaint to the committee
• The committee must review and resolve or dismiss a complaint. Because the decision must be by consensus, the labor side can veto any bad employer decision
• If a complaint is not resolved it can be appealed to the New York State Department of Health (“DOH”) for investigation.
• DOH will investigate unresolved complaints that involve failure to:
• Follow the procedures of the law (forming committees, adopting plans, filing plans, etc.)
• Non-compliance with staffing plans
• Patterns of failing to reach consensus on plans or on compliance (this is targeted to dysfunctional or rogue employers who show a pattern of refusing to work for consensus)
• If DOH finds a violation after investigation, it will issue an order to correct the violation within 45 days
• The DOH can fine a hospital for failure to comply with an order to comply with a corrective plan
• Under current law the fines can range from $2000 to $5000 per violation. Additional sanctions can be imposed under public health law
• The DOH complaint process is separate from and in addition to the existing rights to enforce our contractual staffing under the CBA
• NYSNA and unions now have two enforcement mechanisms — full rights to enforce through contracts (grievance, arbitration, etc.) AND DOH complaints/fines
• This new enforcement structure is particularly important for our public sector contracts and private sector contracts with little to no enforcement rights
• All of the reports generated through this process will ultimately be reviewed by the Hospital Staffing Advisory Commission, which will include union representation and will make recommendations to the Legislature on hospital staffing.

Each facility and region already have access to Captains dashboard reports (see sidebar). These are perfect tools to measure compliance with the law from the RN perspective. The Captain system gives a snapshot of what’s going on in your unit. Protests of Assignment give a fuller snapshot of what’s transpired.

Hospitals will have to report their actual staffing of RNs, LPNs and assistive personnel (expressed in hours of staff time per shift, and in ratios for RNs).

The dashboard aggregates and charts reports submitted by NYSNA staffing captains. Users can filter by facility and unit to view Captain data, and average reported staffing levels.

Coming up this summer

In July and August, NYSNA will be offering training on bargaining. A statewide retreat of all bargaining committees (post-COVID) is tentatively on schedule for Winter 2021. Among the issues to be reviewed: What are the employer trends? How to interpret and utilize them.

JOIN the Statewide Staffing Committee

Sign up: http://bit.ly/sscsign

The Statewide Staffing Committee will coordinate the union-wide implementation of the statewide staffing laws. The committee will:

• Develop statewide and regional standards to be incorporated into facility staffing proposals.
• Develop and share internal and external organizing strategies for optimizing implementation of the law and advancing our ultimate goal of establishing statewide staffing ratios.
• Share best practices for relating to and building consensus with representatives of other frontline unit staff, and training resources.
• Offering hands-on support for local all-staff committees.
• Reach out to and educate non-union nurses with staffing ratios template proposals and organizing campaign tools.
• Share information on employer compliance with Transparency and Reporting requirements of the law.
• Monitor overall progress of implementation.
• Issue reports on the progress of implementation.

Key Dates for Preparation, Implementation, and Enforcement under the law:

1. January 1, 2022: Staffing Committees to be established.
2. January 1, 2022: Staffing Regulations set and promulgated by DOH Commissioner for Critical Care Units.
3. July 1, 2022: Hospital Statutory Staffing Plans to be submitted to the DOH, including all areas of agreement and disagreement. This repeats every July every year thereafter for the next year’s plan staffing plans must include provisions of the Collective Bargaining Agreement.
4. July 31, 2022: The Hospital Staffing Plans are posted on the DOH website and made available to the public. This repeats every July every year thereafter for the next year’s plan.
5. January 1, 2023: The Hospital must implement the July 1st Staffing Plan and that Staffing Plan becomes enforceable under the law. This repeats every January every year thereafter for the next year’s plan.
6. July 1, 2023: Numbers of complaints and data on unresolved complaints must be included with the Staffing Plan submitted to the DOH. Reports required by the Nurse Staffing Disclosure law and the actual staffing at the Hospital will be made publicly available on the DOH website.
7. October 21, 2024: The Hospital Staffing Advisory Commission submits their report and recommendations to the Legislature*

*The Commission will have 3 union members, 3 hospital members and 3 academics/experts.