Legislature(1997 - 1998)
04/14/1997 03:17 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 217 - CERTIFIED NURSE AIDES CHAIRMAN NORMAN ROKEBERG indicated that the committee would consider HB 217, "An Act relating to certified nurse aides; and providing for an effective date." Representative Ryan came forward as sponsor to provide information to the committee. Number 050 REPRESENTATIVE JOE RYAN testified on HB 217 as sponsor to this legislation. The need for this bill was brought to his attention and it's a means to give legislative authority to the nursing aide certification program established by executive order. Through the Board of Nursing this establishes minimum requirements for nurse aide training. This legislation also calls for a registry of certified nursing aides. REPRESENTATIVE RYAN stated that since Certified Nurse Aides (CNA) requirements were established by executive order, there is no legislative authority to take disciplinary action against these individuals. If they prove to be incompetent or injure people, the Board of Nursing doesn't have any authority. This bill allows the Board of Nursing to deny, suspend or revoke a nurse aide certificate for reasons such as conviction of a crime related to a nurse aide function, negligence that results in an injury, risk of the health or safety of a client or an addiction to illegal drugs or alcohol. REPRESENTATIVE RYAN continued that this legislation will continue to allow the Department of Health and Social Services to maintain a list of CNAs who have worked in state licensed long term care facilities and home health agencies who have committed abuse, neglect or misappropriation of property. The medical profession is moving very quickly these days and the number of people in the country, especially those growing older, requires more and more medical attention. There have been a lot of instances in the Lower 48 where hospitals and nursing facilities, etc. have tried to get these CNAs to perform duties for which they really weren't trained. REPRESENTATIVE RYAN added that this legislation allows for the Board of Nursing to have authority over these individuals to maintain adequate training and at the same time if they commit acts which are not ethical and/or criminal a means to reprimand. The Board of Nursing will have the authority to remove this license, suspend it or to take the appropriate action. Representative Ryan noted that his wife was a registered nurse in the state of Alaska which might be considered a conflict of interest. Number 399 REPRESENTATIVE RYAN introduced and moved a new committee substitute for HB 217 labeled 0-LS0737\B, dated 4/9/97, to be adopted by the committee. Hearing no objection it was so moved. Number 580 GAIL MCGUILL, President Alaska Nurses Association came forward to testify on HB 217. She's a registered nurse, a Licensed Nursing Home Administrator, and is presently employed as the Director of Quality Management at Columbia Alaska Regional Hospital in Anchorage. On behalf of the Alaska Nurses Association she spoke in support of HB 217. The protection of Alaska's senior citizens and others in need of nursing aide services is of utmost importance to their organization. MS. MCGUILL continued that the Alaska Nurses Association has worked with the Alaska Board of Nursing for over seven years in trying to achieve the public protection goals which this legislation provides. In 1989, the governor signed the Administrative Order 115 calling for the Department of Commerce to take responsibility for the training, certification and registration of nurse aides required by the federal government. Since this time the Board of Nursing has worked with the Division of Medical Assistance, the Office of Certification and Licensing, and the industry's long-term care facilities and home health agencies to maintain standards for nurse aide training testing and competency. The Board of Nursing has shown fairness and cooperation in working with the nurse aides, employers of nurse aides, and home health aides. MS. MCGUILL stated that the Alaska Nurses Association believes the statutory and regulatory authority for nurse aides should rest with the Board of Nursing, the state agency responsible for regulating nursing care in Alaska. This legislation will strengthen the board's ability to protect the public. It will grant the board the ability to set standards for certification, for defining competency for nurse aides, it also sets standards for the certification and training curriculum and does allow the board the ability to discipline nurse aides by revoking certification when appropriate in the same way it does with Registered Nurses (RNs) and Licenses Practical Nurses (LPNs). MS. MCGUILL continued to state that although the board has set standards for education and competency testing for nursing aides since 1989, it has not been able to perform any disciplinary action because it lacked the statutory authority to do so. The Department of Health and Social Services has had responsibility to do investigations only when the allegations involve client abuse, neglect or misappropriation of funds only when the individual is employed in a long term care facilities or a home health agency. In fact, over the past seven years, staff from the Board of Nursing have provided professional consultation to the department and Senior Ombudsman in investigating complaints related to certified nurse aides and nursing care of Alaska's senior citizens. She pointed out that this bill provides the board the ability to protect the public with regard to all the nurse aides who are certified. Number 775 REPRESENTATIVE JOHN COWDERY understood that the Board of Nursing has the authority to oversee training of nurse aides. He wondered what defined the word "oversee." MS. MCGUILL responded that there were 34 programs already approved in the state that provide basic education. The number of hours ranges depending on which program someone is enrolled, with a minimum of 75 hours. There is hands on training and classroom training. Number 841 REPRESENTATIVE COWDERY asked in relation to becoming a registered nurse could an individual build from their training as a nurse aide. This was how she got started. MS. MCGUILL stated that a nurse aide is an entry into becoming a nurse. Number 877 REPRESENTATIVE BILL HUDSON asked if there was a compelling concern regarding public safety and these nursing aide individuals? MS. MCGUILL responded that the concern they have relates to the fact that the state of Alaska is limited in preventing someone from continuing to practice if they're working in a variety of different settings. Number 934 REPRESENTATIVE HUDSON asked if there was a possibility that this legislation may serve as a bar to some folks getting into this field? He wondered otherwise if this legislation would serve as a registration and management scheme program and an ability to take action in the interest of safety. MS. MCGUILL agreed with the latter representation. Number 962 REPRESENTATIVE COWDERY asked if this legislation would be a burden for the Department of Health and Social Services in relation to fielding complaints. MS. MCGUILL responded that Catherine Reardon from the department might speak to this question. The fiscal note does call for an investigator in occupational licensing. Number 986 REPRESENTATIVE RYAN alluded to the case loads of registered nurses which are currently picking up in volume. MS. MCGUILL responded that case load depended on settings and the kinds of services provided. Registered nurses are responsible for more patients. Number 1035 REPRESENTATIVE RYAN added that nurse aides are required to help nurses perform their duties. MS. MCGUILL responded that this was one of the reasons why the Alaska Nurses Association supports this bill. Number 1072 REPRESENTATIVE HUDSON asked that when "they" establish a regimen for control do they also have a testimonial to qualifications. If so, do they have additional liability by asserting that someone meets certain qualifications when it turns out they might not. MS. MCGUILL responded that the individual who becomes certified has additional responsibilities in order to maintain this certification and to practice in accordance with this certification, along with the regulations that are applied to this occupation. Number 1138 CHAIRMAN ROKEBERG asked if the Board of Nursing has disciplinary and enforcement power over their current membership. MS. MCGUILL responded that they do over registered nurses. CHAIRMAN ROKEBERG asked if they are able to met out fines, punishments, investigation powers, revoke and suspend licenses. MS. MCGUILL responded that, "yes" they do. Number 1261 RON COWAN, Department of Health and Social Services, Division of Health Facilities, Licensing and Certification testified from Anchorage via teleconference on HB 217. This division is responsible for the licensing of health care facilities in the state including the certification of facilities to receive medicare and medicaid funding. One of the responsibilities is to conduct complaint investigations which sometimes involve certified nursing assistants. The department supports this bill and he reiterated everything Ms. McGuill said about the need for this legislation. MR. COWAN stated that they've been hamstrung for years without statutory authority for the board to take action in regards to existing federal law and also because the number of nursing assistants has grown to over 5,000. The clientele are often times vulnerable and in need of some type of consumer protection. As a result of their investigations they've found instances of abuse, neglect and misappropriation of funds. Without this legislation, neither they nor any other entity in the state would be allowed to take appropriate action. MR. COWAN mentioned that it recently came to the department's attention that there was a possible problem in the bill, specifically with Section 16 which is a change to existing law. This affects the assisted living homes and the sharing of information related to investigations. Number 1395 REPRESENTATIVE RYAN stated that he has an amendment suggested by the department which addresses the investigation of an individual when it's found they are not guilty of what they were accused. In the course of this investigation, if it's found that additional information incriminates a different person, presently no action can be taken because of confidentiality. This amendment would allow this additional individual to be investigated. He moved amendment one on page 7, line 27 the deletion of language "certified nurse aides." He also noted the change to the bill title as follows, "An Act relating to certified nurse aides; disclosure of investigative information to the appropriate agencies and providing for an effective date." Hearing no objection it was so ordered. Number 1521 REPRESENTATIVE HUDSON asked if there would be anyone caught in the "middle of this thing," people who are subject to higher standards and "shoved out of the pipeline" here, or does this legislation take care of everyone that's already in these programs. MR. COWAN responded that this legislation provides the board with authority to take action and to adopt regulations for those persons who are currently certified. This will also impact those individuals who become certified after the passage of this legislation. This will not retroactively affect anyone relative to their current status as being certified. If they were to perpetrate one of the acts for which disciplinary action is appropriate they would be impacted by this, but it would not change the current certification requirements for those who have already gone through the process. Number 1582 CHAIRMAN ROKEBERG referred to the enforcement provisions of this legislation. It seems in these sections the department has the duty to create new regulations for implementation of the enforcement provision, but noted the zero fiscal note at the same time. He asked if this meant that their existing investigative staff and hearing officers are adequate to meet the concerns that are specifically required for the Health and Social Services Department, as opposed to Occupational Licensing. MR. COWAN responded that the nursing assistants that may be subject to this legislation, the number that would actually fall within the department is a very small one. Also, it's important to note that they receive reimbursement from the federal government to provide this service. They anticipate this funding to continue. This funding has been adequate to date to carry out their responsibilities. Number 1653 CHAIRMAN ROKEBERG asked if their purview was only for those areas covered by medicaid and/or other medicare type programs under the department's jurisdiction. He also wondered if this legislation was in conflict with the federal Health Care Financing Administration (HCFA) requirements. MR. COWAN responded that Chairman Rokeberg was correct in the relation to the first question and stated that he was involved with the original legislation. He believed there was nothing in this legislation which is contradictory, in fact, some of the language is specifically written to avoid conflicts with the federal requirements. Number 1722 PAT DOOLEY, Board Member, Alaska State Nurses Association testified from Anchorage via teleconference on HB 217. She added that she was the Director of Nursing at the Mary Conrad Center in Anchorage. She wished to respond to the nursing assistants program being an entry level into the nursing program. She said this was true for many of the nurse assistants, but they don't have the same level of education that nurses do. Nurses take a lot of classes which help them understand anatomy and physiology, including pharmacology. Although nursing assistants conduct a lot of hands on care they do lack the ability to access a patient's condition. She said this would be like asking a cashier at a gas station to open the hood of someone's car to make an assessment. MS. DOOLEY continued that the other concept she'd like to address relates to delegation. When a situation has been delegated nurses have a specific scope of practice. When they delegate, they still retain responsibility for the outcome. They determine what the task might be with specific guidelines to follow. A big concern to nurses is that it's great to have nursing assistance to do the more repetitive tasks which don't require the years of training and knowledge. It's a concern to nurses that when they still retain responsibilities for things, that they don't have the ability to follow up if individuals aren't doing things correctly or if there's a need for a disciplinary process. This situation is a catch 22 because usually people are doing more with less and these people are asked to supervise when they don't have any control over the quality of the staff that they supervise. Number 1879 CAROL CLAUSSON, private citizen, testified via teleconference from Kenai. She is also a registered nurse. She testified in favor of this legislation. She felt that anyone who worked with the patients, the vulnerable public, needs to have a minimum of training while being held accountable for their actions. There needs to be a mechanism in place to assure this. Since nurse aides work under licensed nurses the regulation of these aides is best done by the Board of Nursing. She hoped that in the future nurse aides working in the hospital setting will be required to be certified. Number 1937 MARY WEISS, Registered Nurse, testified via teleconference from Anchorage. She read a letter which she received from a nursing assistant. "My name is Judy Lowberg. I've been working as a certified nursing assistant in an Anchorage home care facility for over four years. I urge you to require mandatory certification for all nursing assistants as a condition of work. First of all, certification provides a way for CNAs to be current on changes by requiring continuing education for recertification. Secondly, certification provides a way to track information about past work experiences, training and even any criminal history about people who are giving direct care to patients of nursing assistants." MS. WEISS stated that as a registered nurse who has worked in rural areas she found out how very difficult it was to get certified nursing assistants. Number 2048 SUE NIKODYM, a Registered Nurse; First Vice President, Alaska Nurses Association; and Long Term Care Coordinator at the Wrangell General Hospital came forward to testify on HB 217. She said that she works with CNAs every day. She plans, implements and coordinates their education. Their facility is one of 34 which is certified with the state to teach courses. MS. NIKODYM spoke in support of HB 217 which would bring the regulatory authority of CNAs under the Board of Nursing. As a nurse, she is responsible for all aspects of care to their elderly population which also encompasses the actions of CNAs. This legislation will give the Board of Nursing the authority to regulate education, incompetency of CNAs, as well as act in a disciplinary capacity if necessary. MS. NIKODYM stated that the Alaska Nurses Association is taking positive approaches toward the regulation of all nurse aides in the state. Through these regulations this ensures quality and safe patient resident care. She also was a member of the American Nurses Association Task Force that looked at federal regulation of all nursing assistants and through this task force they came up with guidelines for the state nurses association. This association advocates competency based education for all nursing assistants despite the area of health care that they work within. MS. NIKODYM continued that the state Board of Nursing would be able to maintain competency based education, as well as maintaining a national registry database that pertains to health care. With downsizing and deregulation they must help to protect this group of health care providers by helping them maintain their competency levels and by giving the RNs and the Board of Nursing to go to for advice and counsel. Number 2163 BARBARA HUFFTUCKNESS, Director, Legislative and Governmental Affairs for the Teamsters, came forward to testify on HB 217. The Teamsters represent CNAs, as well as RNs and several of the hospitals around the state. The Teamsters support this legislation. They do have a certified program in place with respect to at least one of the hospitals in Alaska. This bill will bring a more focused umbrella by having all these programs under the Board of Nursing. They also believe it will reinforce some valuable perspectives with requirements being set forth in the law. Number 2255 CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development came forward to testify on HB 217. The department supports this legislation and the Board of Nursing is on record in support as well. First, the Division of Occupational Licensing already certifies CNAs. There are approximately 2,000 of them in Alaska and the department certifies them under a federal law, a federal requirement. This does not take a group of people who have not had any interaction with government already. This legislation gives the department and board the tools they need to make the system work better and to protect the public. MS. REARDON believed that public protection was the real benefit of this legislation. The federal government has required they certify nurse aides only in relation to their activities in a small sub-set of facilities. There are approximately 2,000 individuals out there who have state certification, but they could commit any type of heinous act and as long they didn't do it in one of these licensed facilities she would have no way of taking away their certification. This legislation would allow the division under the Board of Nursing to investigate, suspend or revoke CNA certification for offenses that take place in other locations. MS. REARDON added that it's difficult to administer a program under federal law without any state law accommodations. They can't write regulations since they have no statutory authority to do so. This legislation would rectify this situation. In conclusion, this is not an attempt to block entry of a new group and it's not a mandatory licensure law. Anyone who has not been required to have CNA certification before will be required to have it now. Anyone can be hired to take care of an elderly adult in a home, for example, but if someone chooses a CNA or are part of a staff that is licensed by the federal government, the public can be more assured that these individuals have the qualifications and are under the disciplinary regulations that make them safe practitioners. Number 2434 REPRESENTATIVE RYAN stated for the record that he appreciated the fiscal note and noted that it seemed to be a wash, even though there is an expense the division anticipates program receipts for the licenses to cover these expenses. MS. REARDON responded that with all the occupational licensing programs the fees will cover the cost. There will not be any new general funds used. The fiscal note primarily allows for an investigator because the division is taking on the responsibility for disciplining a new set of licenses, it's important to follow up on complaints. Number 2470 CHAIRMAN ROKEBERG asked about subsection (e) and how the board can establish procedures regarding abuse, neglect, misappropriation of property, etc. and that they would write regulations. His concern is that there is nothing in the statute that provides for a hearing to take place where the offending CNA can bring exculpatory information. TAPE 97-40, SIDE B Number 000 CHAIRMAN ROKEBERG asked about the division's fiscal note. He took legislative notice that this was not a general fund, but will become part of the general fund budget number. "I am concerned though that it may cause a burden on the certified nurse aides in the state because if you use even the larger figure of 2500 CNA, a potential CNA in the state by your $86,000 fiscal note that's approximately rounded up to $35.00 per year or how we do it by annually normally a $70.00 bi-annual cost. Is that about how you reckon it?" MS. REARDON stated that she believed the bi-annual fee will probably be around $100.00. She noted that nurses pay $135.00 every two years presently. This fiscal note reflects the additional expenditures the state will make and the revenues which balance out as a result. The nurse aide share of the Board of Nursing per capita cost is not reflected. That's why the math does not work. With enforcement and investigative activity they match this to the complaints that come in. If they find they're not getting quite that many complaints concerning CNAs and they have some investigator time to spend on nursing RNs they will do this and the CNAs won't be billed for it. Number 146 LOUISE DEAN, Chair, Alaska Board of Nursing, testified via teleconference from Anchorage on HB 217. She is a public member on the board and could not stress enough the importance of this legislation. She's been on the board since 1990 and this has been a project they've tried to pass through since that time. Each week the number of nurse aides grows larger and larger. She also wanted to stress that the right to practice, whether someone is licensed or certified, is a privilege that someone works for and it needs to be held by certain standards. CHAIRMAN ROKEBERG noted that the committee had not taken any testimony from any actual nurse aides. He asked if she was aware of anyone in this category who might be against this bill or negatively impacted by it? Number 211 MS. DEAN responded that she had not heard anything and mentioned a letter they would be faxing in support of it, a letter from a CNA. Any nurse aides she has spoken to support this bill. She knows several CNAs who have gone through nurse aide training as part of the jobs program and they were in support of this effort. They feel they are a group of professionals and want to be held to certain standards. CHAIRMAN ROKEBERG noted that this legislation in certain instances exempts the division from the provisions of the Administrative Procedures Act and then implements others..."requires that you write regulations as the board under Title 8 and then brings in the department." It appears to him that there are two different enforcement agencies under this bill. He was concerned with this. Number 286 MS. REARDON responded that this was a bit complex. Mostly the reason for this was because of the federal law which overlays the entire system and the division's inability to get around it. As Mr. Cowan noted earlier there is a federal requirement that only his agency can make a finding of abuse concerning CNAs in certain licensed facilities. His department, HESS, will continue to conduct this function under due process and make the finding of abuse for those CNAs in those limited number of facilities. The Board of Nursing with Commerce's assistance regulates all of the other Nurse Aides who might commit offenses or become incompetent. If HESS makes a finding of abuse concerning a CNA in one of their facilities they will conduct due process hearings, finish findings and report them to the Board of Nursing. The Board of Nursing will immediately, without conducting a second hearing, revoke the license. Their main goal was to avoid two due process hearings for the same event, since this would slow the process down. HESS and Commerce would still discipline nurse aides, HESS the smaller group and Board of Nursing/Commerce conducting the remainder. MS. REARDON stated that the APA question might be addressed to Mr. Cowan. HESS would like the ability to have flexibility in what due process system they establish when they discipline a nurse aide while meeting constitutional due process rules, but not necessarily under the due process system required by the APA. The Department of Commerce and Board of Nursing have been operating under the APA. She wanted to make sure that on page 3, line 30, regarding notice, the board shall immediately revoke certification without a hearing. She wanted to retain this because a second hearing would be avoided for the exact same offense. MS. REARDON stated that she was not certain they would need an exemption from the APA to do this. They may need the exemption, but this is the only reason they would be interested in being exempted from the APA. HESS has other reasons to be exempted from the APA. Number 474 CHAIRMAN ROKEBERG called for a public hearing recess on this legislation and delayed it to the latter part of the committee meeting. Number 487 HB 217 - CERTIFIED NURSE AIDES CHAIRMAN ROKEBERG asked Ms. Reardon if there was sufficient due process in place on the part of an accused nurse aide to allow for a hearing or would the division need to draft regulations to provide these hearings under the statute. He was referring to Section 08.68.333 on page four of the original version, subsection (e). There is no provision in this subsection for a hearing by the nurse aide before the Administrative Procedures Act. Further, would this be covered by the APA? MS. REARDON responded that subsection (f) on line 16, does exempt the board from the requirement that the APA be followed for procedures under this whole section. She clarified for the chairman that his reference to AS 44.62.330 through .630 was related to the APA. This section says that the APA does not apply to hearings held or procedures established under this section. She reiterated that the Board of Nursing and the division feel very comfortable following the APA. Subsection (e) was put into their original draft of this legislation by the Department of Law. She thought it strange that this section was necessary at all. She didn't think it was, but the Department of Law came up with the idea in case of a mistaken identity. She noted they'd never had this problem before. Number 710 CHAIRMAN ROKEBERG referred to subsection .331, on page 2, line 30, as giving them powers under administrative procedures and what they are required to do when faced with a hearing regarding CNA infractions. MS. REARDON responded that Title 08.01 is their centralized licensing statutes where it doesn't necessarily give them directives, but outlines the punishments they may instruct. By all means, before anyone in the division disciplines a licensee, this licensee will have a hearing under APA strictures. Number 794 CHAIRMAN ROKEBERG noted that, "right where they can have their administrative hearing under the department's procedures, but they can also request a revocation through Ms. Reardon's department, so I understand that, but here we're talking about the revocation in other future, further suspension and the hearing process in case this happens." Number 825 MS. REARDON stated that she does not wish for the division or the Board of Nursing to be exempted from the APA. The HESS has a desire to be exempted from the APA. In trying to accommodate their desire to out from under the APA this type of language was added. CHAIRMAN ROKEBERG again pointed out that there was no provision in the legislation that provides for due process of somebody being disciplined. Number 860 MS. REARDON stated that it says they're exempt from the APA, but it doesn't say they're exempt from the constitutional obligation to give due process. If the APA process wasn't followed, a whole new procedure would have to be established to ensure due process. HESS seems to desire another alternative. CHAIRMAN ROKEBERG referred to page 2, line 31, the word "may." He wanted to know why "may" was used and not "shall." Number 941 MS. REARDON stated that this was discretionary. CHAIRMAN ROKEBERG referred to page 4, regarding the definition of "notice," and asked if this was an APA definition. Number 973 MS. REARDON responded she wasn't sure if it was the APA requirement, but stated they would like to follow this procedure. She said this could be done rather by certified mail. CHAIRMAN ROKEBERG said he would feel more comfortable with that. He moved a conceptual amendment to allow for this change on page 4, line 2, the addition of "certified mail." Hearing no objections, it was so moved. Number 1102 REPRESENTATIVE RYAN moved and asked unanimous consent to move 217 as amended out of committee with individual recommendations and accompanying fiscal note. Hearing no objection, HB 217 was moved out of the House Labor and Commerce Committee.
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