Legislature(1997 - 1998)
04/25/1997 09:06 AM Senate HES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 152 CERTIFIED NURSE AIDES
CHAIRMAN WILKEN introduced CSSB 152(L&C) as the final order of
business before the committee.
ANNETTE KRIETZER , staff to Senator Leman, said that the legislation
is introduced at the request of the Alaska Nurses Association. Ms.
Krietzer reviewed the sectional analysis included in the packet.
She noted that the sectional analysis for Section 2 had a mistake
the statute referenced, AS 08.68.33(c), should actually be AS
08.68.333(c). In Section 5 Sec. 08.68.333(b), Ms. Krietzer pointed
out that the revocation of a nurse aide's certification can occur
if the board finds "abuse, neglect, or misappropriation of property
in connection with employment as a nurse aide"; the "in connection
with employment as a nurse aide" was added to be specific.
Therefore, a CNA can be placed on the registry one of two ways. A
CNA can be placed on the registry due to "abuse, neglect, or
misappropriation of property in connection with employment" which
is governed by the Administrative Procedure Act (APA). However
under subsection (c), upon a notice of finding from DHSS, a CNA can
be placed on the registry under AS 47.05.055 which is not subject
to APA.
Ms. Krietzer expressed concern with Section 10 and directed the
committee to page 6, lines 20-21. If DHSS has reason to believe a
CNA in a facility licensed by DHSS has committed abuse, neglect, or
misappropriation of property, DHSS investigates to determine
whether a finding should be made. As the legislation is currently
written, these proceedings are exempt from APA. Ms. Krietzer
directed the committee to page 3, lines 28-31 which states that the
board can revoke a nurse aide's certification without a hearing and
enter the finding in the registry and notify the nurse aide of the
actions taken by the department. The department does not have a
procedure in place. In conversations with DHSS, the department
indicated that it will probably follow APA, but would look for an
alternate procedure. This is of concern and the committee may want
to contemplate whether these proceedings should be exempt from APA.
Ms. Krietzer noted that Sections 14-16 are conforming amendments
that add this agency investigation into statutes where necessary to
comply with federal law.
Number 400
SENATOR LEMAN understood that those sections addressing the
exemption from APA were suggested by DHSS during the department's
assistance in drafting. Senator Leman requested that DHSS inform
the committee as to why those suggestions were made.
TERESA LYONS , registered nurse, supported SB 152. Ms. Lyons
informed the committee that she has worked as a registered nurse
throughout Alaska and the nation and has worked with many certified
nursing assistants and aides. Of those CNAs, some did prey upon
the vulnerable populations being served. Ms. Lyons pointed out
that the lack of public oversight for CNAs in home care agencies
and hospitals leaves the policing to the employer. Unfortunately
because of the structure, people move from agency to agency or
hospital to hospital and the abuse continues.
SENATOR ELLIS asked if some specific event spurred this legislation
because this has been discussed for a number of years. ANNETTE
KRIETZER noted that there have been some changes in federal law
requiring that each state establish procedures to deal with the
revocation of certificates of CNAs.
SENATOR ELLIS asked if there were any problems through the board
that could not be dealt with through the existing statute. ANNETTE
KRIETZER understood that the current program does not have any
statutory authority in existing statute to deal with what the board
is required to under federal law. SENATOR ELLIS asked if there
have been any problems. ANNETTE KRIETZER said that currently, CNAs
are issued certificates not licenses. Ms. Krietzer understood that
there have been some problems, but the board does not have the
ability to deal with them.
Number 349
GAIL MCGUILL , President of the Alaska Nurses Association(ANA),
informed the committee that she is also a registered nurse, a
licensed nursing home administrator and Director of quality
management at Columbia Alaska Regional. Ms. McGuill supported SB
152. For seven years, ANA has worked with the Alaska Board of
Nursing to achieve the public protection encompassed in SB 152.
In 1989, the Governor signed EO 115 which called for the Department
of Commerce to take responsibility for the training, certification,
and registration of nurse aides that is required by the federal
government. The ANA believes that 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.
SB 152 will strengthen the board's ability to protect the public
and will allow the board to establish standards for certification
for defining competency for nurse aides. SB 152 provides the board
with the ability to discipline nurse aides and revoke certification
when appropriate. Although the board has had standards for
education and competency testing for nurse aides since 1989, the
board has been unable to perform any disciplinary actions due to
its lack of statutory authority. DHSS has had the responsibility
to do investigations, but only when the allegations involve client
abuse, neglect, or misappropriation of funds. Over the past seven
years, the Board of Nursing has provided professional consultation
to DHSS and the senior ombudsman in investigation of complaints
related to CNAs and nursing care of senior citizens. SB 152
provides protection to the public from all CNAs.
RON COWAN , Division of Medical Assistance, supported the comments
related to the need for this legislation. Mr. Cowan reiterated Ms.
McGuill's comments regarding the history of CNAs and the process
that has led to this legislation. EO 115 provided limited
authority to the state and Occupational Licensing in the Board of
Nursing to develop certain standards. Those standards were limited
to the federal government, the only statutory authority available
at that time, which was limited to nursing homes. The CNA
population has increased and are working in many other settings
besides nursing homes. The problem has been that when a hearing
takes place, the department does not have statutory authority to
enact any disciplinary actions.
Mr. Cowan directed the committee to Section 9, lines 7-9 and
Section 10, lines 18-19 of the bill when discussing the exemption
from APA. The department will ensure protection of the due process
rights of individuals the department takes action against. Mr.
Cowan explained that an APA hearing for a CNA utilizes the same
criteria used to revoke a physician's license or that of a higher
practitioner. In the APA hearing, malpractice and the like are the
subject, while CNA hearings revolve around physical abuse. The
burden of proof under the APA is of such stringent nature that it
is difficult to take action against someone that should not be a
CNA. Mr. Cowan said that this exemption is not a breaker for the
department, but something more effective than APA for this type
hearing should be reviewed. There is a difference between the
revocation of the certification of a CNA versus that of a
physician. Mr. Cowan supported SB 152.
Number 230
SENATOR GREEN inquired as to the training of a nurse aide. RON
COWAN explained that a minimum of 75 hours is required of which
certain skills are learned and competency tests must be passed.
There is a didactic test requirement and continuing education is
also required.
SENATOR GREEN asked if certification is the only method available
to discipline these people. RON COWAN pointed out that even
certification cannot be used. The only basis for discipline is
found in federal statutes which says that an individual cannot
continue to work in a nursing home if the individual was found to
have committed violations. Therefore, that individual can go any
place else in the state and work as a CNA. Unless the action falls
into criminal activity, there is no further recourse available.
CATHERINE REARDON , Director of the Division of Occupational
Licensing in the DCED, supported SB 152. Ms. Reardon informed the
committee that the department already certifies approximately 2,000
nurse aides and SB 152 allows the existing program to work better.
The bill establishes a two track system which is mandated by
federal law. The federal law required nursing homes to hire CNAs
and if a CNA was found to have committed abuse, neglect, or
misappropriation of funds that CNA could no longer work in a
nursing home. Since that time, the nurse aide system has expanded.
Therefore, SB 152 would allow the discipline of nurses in other
settings and revocation of the nurse's certificate. The federal
law only places names on a registry and the nurse retains the
certificate. Ms. Reardon pointed out that there are other types of
incompetencies that the department would like to investigate and
possibly take disciplinary corrective action. SB 152 allows the
board to place a nurse aide on suspension, probation, or monitoring
for other offenses that do not fall under abuse, neglect or
misappropriation of funds. Ms. Reardon explained that by federal
law DHSS deals with findings of abuse or neglect in nursing homes
while the Board of Nursing will deal with allegations against nurse
aides in other settings and for reasons besides the three
specified. The second half of the bill makes the nurse aide system
conform to the requirements of other agencies. SB 152 does not
mandate licensure nor certification.
Number 117
SENATOR WARD inquired as to Ms. Reardon's impression of the lack of
process for the revocation of a license. CATHERINE REARDON pointed
out that all of the Board of Nursing and the Department of Commerce
activities fall under APA with one exception. In the case that
DHSS has had a due process hearing and reports the results to the
Board of Nursing, a second hearing would be redundant. The policy
issue is whether DHSS should fall under APA for its hearing. In
further response, Ms. Reardon said that under APA one can appeal to
Superior Court.
SENATOR WARD noted the growth of nurses aides when asking if any
consideration had been given to the upcoming nurses aides to have
their own surety bonds and be self supporting. Senator Ward noted
that the fiscal note indicates that someone will be hired.
CATHERINE REARDON explained that the cost of that employee is being
paid by the license fees of the nurse aide. SB 152 references AS
08.01.065 which is the self-sufficiency mandate. SENATOR WARD
asked if there will be enough fees collected to cover the cost of
grievances, proceedings and other projected costs. CATHERINE
REARDON expected fees will be between $100-$135 every two years.
The division will establish those fees based on cost. The increase
from $30 to $100-$135 in the fees is due to the increased activity
provided.
SENATOR WARD ascertained then that this system would allow the
public to believe that those holding licenses are reliable and can
be trusted. CATHERINE REARDON specified that this will assure the
public that the nurse aide completed the training program and that
no complaints against the nurse aide resulted in disciplinary
action. In further response to Senator Ward, Ms. Reardon said that
physicians are not mandated to carry insurance and SB 152 does not
include an insurance requirement either. Ms. Reardon noted that
most health care professions do not have insurance requirements.
SENATOR LEMAN remained convinced that the APA provisions need not
be changed and the APA provisions are actually incorporated
earlier. CATHERINE REARDON explained that when the Department of
Commerce receives the complaint, the individual has already
received due process from DHSS.
TAPE 97-44, SIDE A
Number 011
In response to Senator Ward, RON COWAN said that any administrative
procedures or appeals process provided is under APA. DHSS wanted
the opportunity to explore other systems incorporated by other
states with the CNA program which were found to more effective than
under APA in protecting due process. There will be circumstances
in which DHSS will not take action against a CNA unless that CNA in
question happens to be working with an entity that has licenses or
certification under Medicaid. Otherwise, the action would be taken
by the Board of Nursing and under APA per the board's request. Mr.
Cowan said that the APA due process provisions will be followed
until the time another procedure is approved.
SENATOR LEMAN expressed the need to hear from a CNA regarding the
CNA. GAIL MCGUILL said that in discussions with colleagues there
has been no concern expressed by CNAs or the employer.
CHAIRMAN WILKEN said that question would be worked on as it passed
on to Senate Finance.
SENATOR LEMAN moved to report CSSB 152(L&C) out of committee with
individual recommendations and accompanying fiscal notes. Without
objection, it was so ordered.
There being no further business before the committee, the meeting
was adjourned at 10:45 a.m.
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