Expands the description of certain services which are not prohibited by statutes governing the practice of nursing, including direct support staff to nurses.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7704A
SPONSOR: McMahon TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA OF BILL:
This bill would authorize direct support staff in non-facility OPWDD
programs to provide nursing services under the instruction of a service
recipient, family, or household member as determined by a registered
professional nurse.
SUMMARY OF PROVISIONS:
Section 1 renumbers and adds a new subparagraph v to paragraph a of
subdivision one of Section 6908 of the Education law.
Section 2 sets the effective date.
JUSTIFICATION:
The Department of Health has a program called CDPAP by some and CDPAS by
others that allow employees to administer medication with appropriate
training. Allowing it for elderly and not for people with disabilities
makes little sense.
Some people who receive OPWDD services also receive the DOH services, so
they will clock out of their OPWDD-funded position, clock into their DOH
job, administer the medication, and then go back on the OPWDD program
payroll. Direct Support Professionals can also be trained to administer
medication in a provider-controlled building but not a building that the
family owns.
This bill would allow greater flexibility for the performance of certain
nursing tasks by unlicensed employees of providers certified by OPWDD in
non-certified community-based settings. This would allow more individ-
uals to remain in or transition to more independent settings, decreasing
the reliance on certified residential settings.
PRIOR LEGISLATIVE HISTORY:
New bill
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
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law, and shall expire and be deemed repealed July 1, 2029.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 regu-
lation necessary for the implementation of this act on its effective
date are authorized to be made and completed on or before such effective
date.
STATE OF NEW YORK
________________________________________________________________________
7704--A
2023-2024 Regular Sessions
IN ASSEMBLY
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:
1 Section 1. Subparagraph (v) of paragraph (a) of subdivision 1 of
2 section 6908 of the education law is renumbered subparagraph (vi) and a
3 new subparagraph (v) is added to read as follows:
4 (v) tasks provided by a direct support staff in non-facility based
5 programs certified or approved by the office for people with develop-
6 mental disabilities, when performed under the instruction of a service
7 recipient, family, or household member and pursuant to a memorandum of
8 understanding between the office for people with developmental disabili-
9 ties and the department, in accordance with and pursuant to an author-
10 ized practitioner's ordered care, provided that:
11 (1) a registered professional nurse determines, in their professional
12 judgment, which tasks are to be performed based upon:
13 (A) the complexity of the tasks;
14 (B) the skill and experience of the direct support staff;
15 (C) the health status and specific care needs of the service recipi-
16 ent; and
17 (D) the service recipient, family, or household member is able to
18 effectively and efficiently communicate with the direct support staff
19 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
1 (2) only a direct support staff that has completed training as
2 required by the commissioner of the office for people with developmental
3 disabilities may perform tasks pursuant to this subparagraph;
4 (3) only a service recipient, family, or household member who has
5 completed training as required by the commissioner of the office for
6 people with developmental disabilities may instruct a direct support
7 staff pursuant to this subparagraph, provided that such course may be
8 satisfactorily completed through distance learning methods which evince
9 that all participants are in attendance for the duration of the course
10 and are able to ask questions of the instructor;
11 (4) appropriate protocols shall be established to ensure safe adminis-
12 tration of medications;
13 (5) a direct support staff shall not assess the medication needs of an
14 individual;
15 (6) a direct support staff shall not be authorized to perform any
16 tasks or activities pursuant to this subparagraph that are outside the
17 scope of practice of a licensed practical nurse;
18 (7) a direct support staff shall not represent themselves, or accept
19 employment, as a person licensed to practice nursing under the
20 provisions of this article;
21 (8) a direct support staff providing medication administration, tube
22 feeding, or diabetic care shall be separately certified, and shall be
23 recertified on an annual basis;
24 (9) the registered professional nurse shall ensure that there is a
25 consumer specific medication sheet for each medication that is adminis-
26 tered;
27 (10) in the event that a registered professional nurse determines that
28 the service recipient, family, or household member is not capable of
29 providing such instruction, a direct support staff shall not provide
30 tasks pursuant to this subparagraph. In the event of any disagreement
31 between a registered professional nurse and a service recipient, family,
32 or household member regarding such capability, then the registered
33 professional nurse's determination shall prevail;
34 (11) a direct support staff shall not provide any tasks unless a
35 registered professional nurse has determined that such task may be
36 performed;
37 (12) adequate nursing supervision is provided, including training and
38 periodic inspection of performance of the tasks, provided however, that
39 the supervising registered professional nurse shall visit individuals
40 receiving services no less than once every two weeks and shall be avail-
41 able by telephone to the direct support staff twenty-four hours a day,
42 seven days a week, provided further, that a registered professional
43 nurse shall be available to visit the service recipient as necessary to
44 protect the health and safety of such recipient;
45 (13) no direct support staff shall perform tasks under this subpara-
46 graph until the office for people with developmental disabilities and
47 the department have entered into a memorandum of understanding to effec-
48 tuate the provisions of this subparagraph. The office for people with
49 developmental disabilities shall complete a criminal background check
50 pursuant to section 16.33 of the mental hygiene law and an agency back-
51 ground check pursuant to section 16.34 of the mental hygiene law on the
52 direct support staff prior to the commencement of any provision of
53 service provided under this subparagraph if such direct support staff is
54 a new hire. Licensed registered professional nurses and individuals
55 providing direct support tasks pursuant to this subparagraph shall have
A. 7704--A 3
1 protection pursuant to sections seven hundred forty and seven hundred
2 forty-one of the labor law, where applicable; or
3 § 2. This act shall take effect eighteen months after it shall have
4 become a law, and shall expire and be deemed repealed July 1, 2029.
5 Effective immediately, the addition, amendment and/or repeal of any rule
6 or regulation necessary for the implementation of this act on its effec-
7 tive date are authorized to be made and completed on or before such
8 effective date.
