Publications

10.18.2023

Newly enacted Article 29-K of the New York Public Health Law imposes new requirements on “health care services agencies” including, but not limited to, annual registration and quarterly reporting requirements. The deadline for registration is currently October 30, 2023, and the deadline for the first submission of quarterly reports is currently November 30, 2023. However, certain aspects of the new rules remain unclear, and further guidance from state regulators will be necessary.

Background

As part of its annual budget legislation, the State of New York has implemented significant changes to the regulation of temporary healthcare workers and staffing agencies. In making these changes, New York joins a growing contingent of states that are more closely regulating this industry. These changes, introduced through Article 29-K of the New York Public Health Law effective August 1, 2023, have implications for both healthcare staffing companies and the temporary healthcare workers they employ. In this article, we will outline the key provisions of Article 29-K and its impact on the industry.

Registration Requirement

One of the central features of Article 29-K is the requirement for "temporary health care services agencies" ("Agencies") to register with the New York Department of Health (the “Department”). This registration process is crucial for Agencies to maintain compliance with the new law.

As of the current deadline, Agencies must complete their registration by October 30, 2023. This reflects a recently-announced extension to the original deadline of September 30, 2023. To ensure proper compliance, Agencies are advised not to register prematurely and to monitor the Department website for additional guidance.

The registration process involves the submission of various pieces of information, including:

• The names and addresses of the Agency's "controlling person(s)."
• Information about ownership relationships or management connections with health care entities.
• Demonstration of good moral character (supplemental forms are forthcoming).
• Registration or renewal fees of $1,000.
• State of incorporation.
• Demonstration that the personnel Agencies provide to health care entities meet the minimum licensing, training, and continuing education standards.
• Any other information required by the Department.

Registrations are valid for one-year periods. Any change of ownership of a registrant/Agency (i.e., ten percent or more of such registrant/Agency) allows for transfer of the registration to the new owner for a period of 30 days until the new ownership applies for a new registration.

Operational Compliance Requirements

Once registered, Agencies must adhere to several requirements to ensure continued compliance with the new rules. Compliance with some of these requirements will involve submission of additional documentation to the Department. Many of these submissions will need to initially be made during the registration process.

Under the new rules, Agencies must:

• Comply with all "requirements and qualifications" related to personnel employed by health care entities.
• Avoid restricting employment opportunities for personnel.
• Refrain from including liquidated damages, employment fees, or other compensation contingent on whether personnel are hired as permanent employees of a health care entity.
• Retain personnel records for six years.
• Comply with books and records requests made by the Department.
• Appoint qualified administrators for each separate Agency location.
• Follow other rules promulgated by the Department.

The new rules also require that agreements or contracts between Agencies and health care entities include specific provisions therein (the “Agreements”). Under Agreements must include:

• Required minimum licensing, training, and continuing education requirements for each assigned health care personnel.
• Any requirement for minimum advance notice for arrival of personnel.
• Maximum billable rates the Agency may charge under Sec. 2999-MM and the rates actually to be charged by the Agency (note, however, that a maximum rate has not yet been established by the Department).
• Procedures for investigating and resolving complaints about personnel performance or their failure to report for duty.
• Procedures for notice of certain illegal activity by personnel.
• The types and qualifications of personnel available for assignment by the agency.

Importantly, “copies of all contracts between the agency and a health care entity to which it assigns or refers health care personnel, and copies of all invoices to health care entities personnel” must be submitted to the Department, and “[e]xecuted contracts must be sent to the department within five business days of their effective date”.

Quarterly Reporting

Agencies are also required to submit quarterly reports that disclose charges and compensation, including hourly bill rates, administrative charges, and compensation rates for various categories of health care personnel. These reports must detail the percentage of Agency expenditures on temporary personnel wages and benefits compared to profits and administrative costs. Other information, such as pay rates and benefits, personnel residences, and contracted health care entities must also be included.

The first submission deadline for agencies’ quarterly reports is currently November 30, 2023. This first submission will take into account the period between August 1, 2023 through October 31, 2023. Subsequent quarterly reports will be due after this initial November due date.

Monitoring and Penalties  

Article 29-K provides that the Department will be responsible for monitoring Agencies’ compliance with the new rules. To that end, the law vests authority in the Department to conduct surveillance and investigations with respect to the operations of temporary health care staffing agencies. The law requires Agencies to comply with such investigations, which may arise if the Department reasonably believes that an agency is not compliant with the law or has made misstatements or omissions with respect to the information it submits.

In the event that an Agency is found to be out of compliance with the new law, Article 29-K gives the Department the power to issue fines that can easily rise to tens of thousands of dollars or more, depending on the circumstances.

Interpretation and Questions

Although the law regulates Agencies that provide certain categories of enumerated employees, such as nurses and CNAs, it also regulates agencies that provide “direct care workers”. However, the definition of "direct care" is open to interpretation. There is ambiguity regarding what roles within a health care enterprise would be deemed “direct care” by the Department.

The Department's interpretation of the law is also critical concerning the definition of "temporary" employment, as the law only regulates firms that obtain or procure “temporary” employees for health care enterprises. It is presently unclear what circumstances constitute “temporary” employment in the opinion of the Department.

The Department has stated that additional guidance is forthcoming. Specifically, the Department recently noted that a “FAQ” section would be added to its website, with the intent of clarifying points of ambiguity with respect to the new law. Whether this guidance addresses some of the questions raised with regard to the definition of “temporary” employment and “direct care workers” remains to be seen. As of the date of this article, no FAQs have been published. Agencies may still submit FAQs to the following: TempAgencyRegistration@health.ny.gov.

Conclusion

Article 29-K of the New York Public Health Law signals a significant shift in the regulation of temporary health care workers and staffing agencies in New York. Agencies and health care personnel should pay close attention to the evolving guidance provided by the Department to ensure they remain in compliance with the law. Given the complexity and evolving nature of the law, obtaining competent legal counsel and consulting with the Department are advisable to successfully navigate the new requirements. For the requisite forms and additional information on the law, please visit the NY State Department of Health website. Instructions can be found within such downloadable forms that are necessary for registrations and reporting.

The Koley Jessen health care staffing industry practice group will closely monitor developments related to this law, and advise as updates become available. If you have questions on whether your business needs to comply with the law or what steps you must take to comply, please contact one of the specialists in our practice group.

^{*Special thanks to law clerk Luke Schnepel for his contributions to this article.}