§ 2895-b. Nursing home staffing levels. 1. Definitions. As used in\nthis section, the following terms shall have the following meanings:\n (a) "Certified nurse aide" means any person included in the nursing\nhome nurse aide registry pursuant to section twenty-eight hundred\nthree-j of this chapter.\n (b) "Licensed nurse" means a registered professional nurse or licensed\npractical nurse licensed pursuant to article one hundred thirty-nine of\nthe education law.\n (c) "Staffing hours" means the hours reported by a nursing home to the\nfederal Centers for Medicare and Medicaid Services through the payroll\nbased journal for long-term care facilities.\n (d) "Nurse aides" means any person who is included in the nurse aide\nhour component of the payroll based journal for long-term care\nfacilities but has not yet been certified as a certified nurse aide.\n 2. Staffing standards. (a) The commissioner shall, by regulation,\nestablish staffing standards for nursing home minimum staffing levels to\nmeet applicable standards of service and care and to provide services to\nattain or maintain the highest practicable physical, mental, and\npsychosocial well-being of each resident of the facility. Compliance\nshall be determined quarterly by comparing the daily average of the\nnumber of hours provided per resident, per day, using the federal\nCenters for Medicare and Medicaid Services payroll based journal and the\nfacility's average daily census on a daily basis.\n (b) The commissioner shall establish, by regulation, civil penalties\nfor facilities out of compliance with minimum staffing levels. Such\nregulations shall include a range of penalties to account for mitigating\nfactors which shall include:\n (i) extraordinary circumstances facing the facility, including, but\nnot limited to, whether the facility has suffered through a natural\ndisaster or other catastrophic event, an officially declared national\nemergency, or state or municipal emergency declared pursuant to article\ntwo-B of the executive law, which has been initially declared subsequent\nto the effective date of this section, or other such conditions or\nunforeseen circumstances as determined by the commissioner;\n (ii) the frequency and nature of non-compliance; and\n (iii) the existence of an acute labor supply shortage within a\nparticular region. When determining if there is an acute labor supply\nshortage within a specific region in a specific quarter, or a shorter\nperiod of time as determined by the commissioner, the commissioner shall\ntake into consideration the following factors: regional labor supply of\navailable certified nurse aides, licensed practical nurses and\nregistered nurses; regional pay rates for the relevant titles as\ndetermined by the federal department of labor, bureau of labor\nstatistics; and evidence that the facility attempted to procure\nsufficient staffing.\n (c) At least thirty days before any action is taken by the\ncommissioner under paragraph (b) of this subdivision, the commissioner\nshall post the assessed penalties, and any mitigating factors that were\nconsidered in assessing the penalty on the department's website.\n (d) In determining whether a nursing home has violated its obligations\nunder this section, it shall not be a defense that such nursing home was\nunable to secure sufficient staff if the lack of staffing was\nforeseeable and could be prudently planned for, or involved routine\nstaffing needs that arose due to typical staffing patterns, typical\nlevels of absenteeism, or time off typically approved by the employer\nfor vacation, holidays, sick leave, and personal leave.\n (e) A civil penalty shall not be imposed under this section until\nafter April first, two thousand twenty-two;\n (f) Every nursing home shall:\n (i) comply with the staffing standards under this section; and\n (ii) employ sufficient staffing levels to meet applicable standards of\nservice and care and to provide service and care and to pr
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