In response to thousands of agency complaints it received in 2023, the New York State Department of Health (NYSDOH) issued guidance to hospitals on March 26, 2024, regarding compliance with recent legislation on clinical staffing committees and hospital staffing plans. The NYSDOH acknowledged that the guidance is directly related to complaints of hospital staffing committee conduct, the selection of committee members, and the development of staffing plans.

Clinical Staffing Committees

In 2021, Governor Andrew M. Cuomo signed legislation¹ that required general hospitals to create clinical staffing committees. Staffing committees are composed of registered nurses, licensed practical nurses, ancillary staff members who provide direct patient care, and hospital administrators. Staffing committees are tasked with developing staffing plans that include specific guidelines as to how many patients are assigned to each nurse, and the assignment of ancillary staff to units.

The staffing committees are required to submit their staffing plans to the NYSDOH annually. In the event a committee fails to reach consensus on the staffing plan or any of its parts, the hospital CEO may use discretion to adopt a plan or partial plan. Where this occurs, the submission must include a written explanation from the CEO and written proposals outlining elements on which the committee did not agree.² NYSDOH then posts the plan on its website as part of the hospital’s health care profile. Hospitals must post the staffing plan for each patient care unit in a publicly conspicuous area in each unit. Hospitals must also post daily staffing plans with the relevant clinical staffing for each unit.

Complaint Handling

To deal with alleged differences between staffing assignments and the adopted staffing plan, collective bargaining representatives and/or hospital employees may file a report or complaint with the clinical staffing committee. Clinical staffing committees must develop a review process to assess, respond to, and track all staffing complaints. Committees must reach a consensus to dismiss or resolve a complaint. The legislation prohibits hospitals from retaliating or engaging “in any form of intimidation” against employees who perform duties in connection with the staffing committee, or any employee, patient, or individual who raises a staffing concern with the committee or hospital administration.

Union Push for Additional DOH Enforcement

During 2023 (the first full calendar year of clinical staffing plans), thousands of complaints were filed by labor organizations against hospitals for alleged staffing violations. The Communications Workers of America (CWA) claims that 8,000 of their complaints remained unresolved as of December 2023. The New York State Nurses Association (NYSNA) has filed numerous complaints with the NYSDOH and has also won several significant arbitration awards related to alleged staffing violations.

On December 19, 2023, NYSNA and CWA held a press conference outside a state legislative hearing on healthcare during which the unions called on state legislators to make safe staffing a priority in upcoming budget discussions and for “robust implementation” and “enforcement” of the clinical staffing plan law.

New York State Department of Health Guidance

On March 26, 2024, the NYSDOH issued guidance to hospitals aimed at ensuring that complaints are reviewed thoroughly and in compliance with the law. The NYSDOH said the additional direction stems from complaints it received regarding committee conduct, the selection of clinical staffing committee members and the development of staffing plans. The NYSDOH instructed hospitals to “develop and implement policies and procedures in Public Health Law 2805-t and 10 NYCRR Section 405.5” including the following:

1. Clinical staffing complaints regarding compliance with the clinical staffing plan, personnel assignments in a patient care area or staffing levels and any other requirement of the adopted clinical staffing are to be submitted to and reviewed by the Clinical Staffing Committee.
2. Hospitals must maintain an electronic log of all clinical staffing complaints and provide it to the Department upon request.
3. Each complaint should be assigned a numeric reference number that is clearly identified in the top quarter of the response. Complainants should be provided the complaint number for each complaint they submit.
4. Hospitals should respond to each complaint in writing. An electronic response is acceptable as long as the hospital maintains a copy of the electronic response.
5. Hospitals must ensure that clinical staffing plans are posted in a publicly conspicuous area on each patient care unit for each shift on that unit along with the actual daily staffing for that shift on the unit.  

NYSDOH encouraged hospitals to seek input (and allow ample time for feedback) from constituencies represented by the staffing committee in the clinical staffing process in order to develop “collaboration and consensus” on clinical staffing plans and related issues, noting that the law is silent regarding participation of representatives other than a collective bargaining representative. NYSDOH recommended further that staffing committee members be selected in the same month each year, with sufficient time between the selection and subsequent formulation of the clinical staffing plan.

Takeaways

• Hospitals should review the NYSDOH’s latest guidance and ensure their clinical staffing committees comply with it, anticipating that labor organizations will continue to file agency complaints and/or seek arbitration over staffing levels.
• Hospitals should strive for collaboration and consensus when developing clinical staffing plans, including obtaining input from the applicable bargaining representatives.
• Hospitals should consider providing ample time between the selection of committee members and the formulation of the clinical staffing plan.