Practice Information

SED/OMRDD Memorandum of Understanding for RN Nursing Supervision

SED/OMRDD Memorandum of Understanding
OMRDD Administrative Memorandum - #2003-01

To: The Honorable the Members of the Board of Regents

From: Johanna Duncan-Poitier, Deputy Commissioner

Committee: Professional Practice

Title of Item: Memorandum of Understanding between Office of Mental Retardation and Developmental Disabilities and the State Education Department, and Administrative Memorandum #2003-01, i.e., Registered Nursing Supervision of Unlicensed Direct Care Staff in Residential Facilities Certified by the Office of Mental Retardation and Developmental Disabilities

Date of Submission: March 17, 2003

Proposed Handling: Discussion

Rationale for Item: To inform the Regents about an important collaboration between SED and OMRDD

Strategic Goal: Goal 3


An agreement has been reached between the State Education Department (SED) and the Office of Mental Retardation and Developmental Disabilities (OMRDD) relating to nursing services provided to patients by unlicensed staff within residential facilities operated or certified by OMRDD. Unlicensed persons can provide nursing services in these settings because of an exemption to the Nurse Practice Act that permits the provision of these services under "adequate nursing supervision" by registered professional nurses. This agreement between both agencies reflects joint efforts to clarify the existing degree of supervision and to set out appropriate standards to ensure a higher quality of patient care for these vulnerable populations in the future.

The attached Memorandum of Understanding between both agencies symbolizes exemplary cooperation between agencies responsible for the care of patients and the standards of practice of licensed health care professionals. It will bring a greater understanding of the supervision by registered professional nurses of unlicensed direct care staff who provide nursing services in residential facilities certified by OMRDD.


Subsection 6908(1)(b) of Article 139 of Education Law provides an exempt clause to the Nurse Practice Act that permits unlicensed assistive personnel, including developmental aides and direct care staff, to provide nursing services in institutions under the jurisdiction of or subject to the visitation of OMRDD, if adequate medical and nursing supervision is provided.

That exemption was originally included in the Nurse Practice Act in 1938 and retained when the law was revised in 1972. When the law was enacted in 1938, the nursing delivery system assured on site supervision of non-licensed personnel by registered professional nurses when unlicensed aides render basic nursing services in institutions. Contemporary service delivery in the field of developmental disabilities includes the delivery of nursing services in widely diverse settings. Increasingly complex health care treatments are routinely provided in community rather than institutional settings. The result has been the proliferation of a wide range of nurse supervision models. The New York State Nurses Association (NYSNA), while continuing to urge repeal of the exemption, has also urged that the agencies work toward guidelines that promote quality of care within the context of the current law.

This situation has been further exacerbated by confusion within the affected nursing community over the definition of "adequate nursing supervision" in the language of the exemption. Over the years, OMRDD, which is a part of the State Department of Mental Hygiene, has disseminated written registered professional nurse (RN) supervision guidelines to the field. Nonetheless, nurses and members of the public raised many questions and concerns regarding the lack of appropriate nursing supervision of direct care staff in these settings.

Representatives from SED, OMRDD and the Office of Mental Health began meeting to address this matter. Beginning in the summer of 2000, representatives from SED's Office of Professional Responsibility, SED's Office of Counsel and the State Board for Nursing, together with representatives from OMRDD visited a representative sample of OMRDD certified facilities statewide to review the nature of nursing supervision being provided. The facilities visited included Intermediate Care Facilities for the Developmentally Disabled, Community Residences, and Individual Residential Alternatives located in Long Island, New York City, Western New York, the Southern Tier and the Capital District.

Those site visits revealed that nursing supervision practices appear to vary widely from residence to residence. In a cooperative effort, both agencies recognized a need to improve practice standards and better define the term "adequate nursing supervision" applicable to practice in those settings. The provision of safe patient care through adequate nursing supervision became the basis for discussions and negotiations during meetings held among representatives of the respective agencies between 2001 and this year.


In February of this year, Executive Deputy Commissioner Helene DeSanto on behalf of OMRDD and Deputy Commissioner Johanna Duncan-Poitier on behalf of SED signed the attached Memorandum of Understanding for RN nursing supervision. The Memorandum of Understanding is an agreement between both agencies that sets forth the provisions of OMRDD Administrative Memorandum - #2003-01, which contains the nursing supervision guidelines. The Memorandum of Understanding also stipulates that the nursing supervision guidelines shall be promulgated as formal OMRDD regulations, a draft of which has been shared with SED for comment.

The Administrative Memorandum provides a clear understanding of the role of the registered professional nurse when providing supervision of unlicensed direct care staff. It addresses issues such as:

  • Applicability-setting out the sites responsible for implementing the nurse supervision requirements;
  • Definition of relevant terms;
  • Frequency of nursing visits, which shall be no less than once a week;
  • Availability of nursing staff for consultation on a twenty-four hour basis;
  • Responsibility for development of a plan of nursing services for any patient with a health related diagnosis requiring nursing services;
  • Guidelines for the Registered Nurse selection of permissible tasks to be assigned to direct care staff;
  • Requirements for the training of new direct care staff;
  • Responsibility for annual clinical performance evaluations; and
  • Staffing ratios

The joint effort that led to the Memorandum of Understanding was needed because the language in the exemption to the Nurse Practice Act did not provide sufficient guidance to the type and amount of registered professional nursing supervision that would be considered "adequate." While some have suggested the exemption should be removed from the statute, those suggestions have not met with legislative approval. OMRDD would urge that the exemption is essential to the continued operation of its current network of small, individualized, home-like and integrated community facilities. The best course of action currently is to work with OMRDD to ensure that the appropriate level of registered nursing supervision is provided to unlicensed staff in the performance of nursing functions. The Office of Professions, including the leadership of the Board of Nursing, strongly supports both documents (the MOU and OMRDD Administrative Memorandum #2003-01), and believes that under the existing exemption the standards delineated in the Administrative Directive Memorandum will provide needed safeguards for the individuals who live in residential facilities operated and/or certified by OMRDD.

Last Updated: January 31, 2013