Legislature(2001 - 2002)

03/14/2002 01:35 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  HB 276-REGULATION OF NURSING                                                                              
                  SB 283-REGULATION OF NURSING                                                                              
                                                                                                                                
CHAIRMAN STEVENS announced HB 276 and SB 283, companion bills, to                                                               
be up for consideration. He said they would use the working draft                                                               
of HB 276 for discussion.                                                                                                       
                                                                                                                                
REPRESENTATIVE PEGGY WILSON, sponsor of HB 276, said:                                                                           
                                                                                                                                
     HB 276  is essentially  a cleanup  bill that brings  the                                                                   
     nursing  statutes  up  to  date   with  current  nursing                                                                   
     practice  in   three  different  ways.  One,   it  gives                                                                   
     licensed  nurses  the authority  to delegate  duties  to                                                                   
     other  unlicensed  personnel.   Two,  it  increases  the                                                                   
     length  of  time  available   for  a  temporary  nursing                                                                   
     license from  four to six  months just for  the criminal                                                                   
     justice background checks. It  takes a little longer now                                                                   
     than it used  to because of that. And three,  it changes                                                                   
     the  wording  regarding  licensure  by  endorsement  and                                                                   
     brings  the  wording  in statute  into  compliance  with                                                                   
     what's already  being done in  the division. I  have the                                                                   
     whole nursing board behind me, so…                                                                                         
                                                                                                                                
SENATOR TORGERSON  asked if there  was a definition  of "assistive                                                              
personnel"  in  section 5  where  it  says  they can  delegate  to                                                              
unlicensed assistive personnel.                                                                                                 
                                                                                                                                
REPRESENTATIVE  WILSON  replied that  meant  unlicensed  assistive                                                              
personnel,  like  nurses  aides  or someone  else  that  would  be                                                              
working with a patient or a client.                                                                                             
                                                                                                                                
SENATOR TORGERSON asked if that was  defined in statute. He had no                                                              
objection to  the way it  was written  in the sponsor  statement -                                                              
unlicensed   assistive  personnel   (UAPs)  such   as  aides   and                                                              
technicians -                                                                                                                   
                                                                                                                                
MS. LYNN  HARTZ, a nurse practitioner  and member of the  Board of                                                              
Nursing, responded:                                                                                                             
                                                                                                                                
     Whether   there  is   a  definition   in  statute   that                                                                   
     determines  who is an  unlicensed assistive personnel  -                                                                   
     no,   because   by   definition   unlicensed   assistive                                                                   
     personnel is  someone who doesn't have a  certificate or                                                                   
     a  license to  practice and  has  been historically  and                                                                   
     currently. Perhaps  I could back  up a little bit,  if I                                                                   
     may. I had  some testimony that might help  explain this                                                                   
     as  far  as  giving licensed  nurses  the  authority  to                                                                   
     delegate  nursing duties to  other personnel. This  came                                                                   
     about   when  the   Board   of  Nursing   was   drafting                                                                   
     regulations on delegation last  year and we were told at                                                                   
     that  time that  nurses did  not have  the authority  to                                                                   
     delegate to assistive personnel  whom in general we call                                                                   
     UAPs (someone  without a license or certificate  in this                                                                   
     state).   Therefore,   the   Board   could   not   write                                                                   
     regulations  about  delegation.  The  Board  had  always                                                                   
     assumed that  nurses had this  authority to  delegate to                                                                   
     unlicensed assistants  and it even published  a position                                                                   
     statement on  that with our  statutes and regs  in 1993.                                                                   
     So that's  why we view it  as a cleanup section  because                                                                   
     it's  giving  the  Board  of   Nursing  and  nurses  the                                                                   
     authority we thought we already had.                                                                                       
                                                                                                                                
     An  example of  delegation  might be  a  nurse asking  a                                                                   
     nurses  aide to  run  a urine  test  on a  patient.  The                                                                   
     nurse's aide  has no legal scope of practice.  Hence the                                                                   
     term unlicensed  assistive personnel.  The legal  source                                                                   
     of the authority to do the nursing  task, in this case a                                                                   
     urine  test, is the  licensed nurse,  because the  nurse                                                                   
     does have  a legal  scope of practice  in the state.  So                                                                   
     the nurse  transfers or delegates that authority  to the                                                                   
     unlicensed person, in this case  to do a urine specimen.                                                                   
     Without the  ability for the  nurse to delegate  nursing                                                                   
     tasks, the  unlicensed assistants  have no authority  to                                                                   
     act. Therefore,  without this  legislation the  UAPs who                                                                   
     are  called  patient  care   technicians  at  Providence                                                                   
     Hospital  have no  legal basis  to  continue to  perform                                                                   
     nursing tasks that are delegated.                                                                                          
                                                                                                                                
     At  the  municipality  of  Anchorage,  UAPs  are  called                                                                   
     family  service aides. It  seems to  be that since  they                                                                   
     are  unlicensed and  certificated, different  employment                                                                   
     agencies  give   them  different  terminology.   So,  at                                                                   
     Anchorage  Health  Department,  they are  called  family                                                                   
     service  aides.  They  would  not  be  able  to  perform                                                                   
     nursing tasks  delegated by public health nurses.  We do                                                                   
     have unlicensed assistive personnel  defined, but it's a                                                                   
     part of  the position statement  written in  1993, which                                                                   
     the  Board  of  Nursing  was told  it  didn't  have  the                                                                   
     authority  to write,  because we  didn't have  statutory                                                                   
     authority   to   delegate    to   unlicensed   assistive                                                                   
     personnel.                                                                                                                 
                                                                                                                                
SENATOR TORGERSON said he would feel better if somewhere it said                                                                
"supervised". "Right now you can go out and get somebody off the                                                                
street and give them a job. That's the part that I don't like."                                                                 
                                                                                                                                
MS. HARTZ said the safety component is under the regulations                                                                    
promulgated by the Board. There would be supervision by                                                                         
registered and licensed nurses.                                                                                                 
                                                                                                                                
SENATOR AUSTERMAN said he understood that those regulations                                                                     
hadn't been adopted yet.                                                                                                        
                                                                                                                                
MS. HARTZ replied, "Just because we don't have the statutory                                                                    
authority to write regulations."                                                                                                
                                                                                                                                
CHAIRMAN STEVENS said, "But you have the regulations."                                                                          
                                                                                                                                
MS.  HARTZ responded,  "We  have  some proposed  regulations  that                                                              
we've been working on, yes, that deal with supervision, yes."                                                                   
                                                                                                                                
CHAIRMAN  STEVENS  asked,  "Are   they  ready  to  be  adopted  as                                                              
regulations now, then?"                                                                                                         
                                                                                                                                
MS. HARTZ replied, "No. I would say  we still want to work on them                                                              
some more."                                                                                                                     
                                                                                                                                
SENATOR TORGERSON  said he didn't  care what they had,  he thought                                                              
it should  be in the  bill. "Supervised  delegation" would  be one                                                              
fix  for defining  the  level of  personnel  you can  do this  to.                                                              
"Right now it's wide open."                                                                                                     
                                                                                                                                
CHAIRMAN STEVENS asked  about the concept of section  5 going into                                                              
affect once the regulations are promulgated.                                                                                    
                                                                                                                                
REPRESENTATIVE  WILSON  replied that's  the  main  reason for  the                                                              
bill. The  nurses have  the regulations, but  there is  nothing in                                                              
statute saying they could adopt them.                                                                                           
                                                                                                                                
SENATOR AUSTERMAN  said the Board  currently has the  authority to                                                              
write regulations.                                                                                                              
                                                                                                                                
MS. HARTZ replied, "Not regarding  delegation of authority and yet                                                              
it's  being  done  daily currently  in  public  health  hospitals,                                                              
clinics."                                                                                                                       
                                                                                                                                
SENATOR DAVIS asked if the unlicensed  personnel were certified to                                                              
work in  a hospital. Someone indicated  they aren't. She  asked if                                                              
they could  cover the  issue by limiting  the authority  to people                                                              
who are employed by the facility.                                                                                               
                                                                                                                                
SENATOR  AUSTERMAN said  that a hospital  could  use a janitor  in                                                              
that instance.                                                                                                                  
                                                                                                                                
MS. HARTZ responded  that it was professionally  inappropriate for                                                              
an RN to delegate in an inappropriate  or unsafe manner. They have                                                              
been telling people  while they are in this gray  area of practice                                                              
to please  go by  appendix D in  the back  of the statutes,  which                                                              
deals completely  with delegation and licenses to  personnel. They                                                              
would like  to refine  that and that  is what  she meant  when she                                                              
said they didn't have those regulations ready to go.                                                                            
                                                                                                                                
CHAIRMAN STEVENS  asked if  this practice  has already  been going                                                              
on, why do they need it in statute.                                                                                             
                                                                                                                                
MS. HARTZ replied  that was a good question and  the Nursing Board                                                              
was under the  misapprehension that nurses had  that authority all                                                              
along and that's why that appendix  was written in 1993. The Board                                                              
submitted regulations  to the Department  of Law and  were advised                                                              
them and the Attorney General that that needed to be in statute.                                                                
                                                                                                                                
CHAIRMAN  STEVENS   asked  if  there's  liability   involved  with                                                              
administering any  sort of tests, does the liability  trail follow                                                              
the  delegation  of   authority  and  has  anyone   ever  sued  an                                                              
institution for having an adverse reaction to a drug.                                                                           
                                                                                                                                
MS.  HARTZ replied  that  it is  the nurse's  responsibility.  Her                                                              
license would  be at  stake if something  like that happened.  The                                                              
three categories of unlicensed assistive  personnel are identified                                                              
as follows:                                                                                                                     
                                                                                                                                
     Those  who nurses  supervise and to  whom they  delegate                                                                   
     some activities  to, those who nurses teach,  but do not                                                                   
     supervise to  those who are  not directly or  indirectly                                                                   
     supervised or taught by nurses.                                                                                            
                                                                                                                                
SENATOR TORGERSON said he thought  they should adopt the suggested                                                              
language  and that  would clarify  the whole  thing. He  suggested                                                              
replacing section 5 with some of the language.                                                                                  
                                                                                                                                
SENATOR TORGERSON  moved a conceptual  amendment on page  60 where                                                              
the  unlicensed  assisted  personnel  is defined.  There  were  no                                                              
objections and that amendment was adopted.                                                                                      
                                                                                                                                
MS. NANCY DAVIS,  Chief, Public Health Nursing,  supported HB 276,                                                              
because  it brings  a number  of  protections to  the public.  The                                                              
language  is good  in terms  of licensure  and it  makes a lot  of                                                              
sense  for them  to look  carefully at  endorsement licensure  and                                                              
making sure  that there  are current  competencies. They  are also                                                              
supportive of the delegation of nursing  functions, because it's a                                                              
critical element  of nursing practice  already. It's  essential to                                                              
rural health care, especially in  this state, in that there aren't                                                              
licensed practitioners in all the  villages and there are a lot of                                                              
health care that needs to occur through delegation.                                                                             
                                                                                                                                
MS.  PATRICIA   SENNER,  President,  Alaska   Nurses  Association,                                                              
supported SB 283.  She said over the past 10 years  there has been                                                              
an increase in the number and type  of ancillary unlicensed health                                                              
care  workers  that RNs  and  LPNs  delegate  duties to  and  have                                                              
oversite over the work they perform.                                                                                            
                                                                                                                                
     It  is imperative  that  we  have regulations  from  the                                                                   
     Board of  Nursing covering delegation of  nursing tasks.                                                                   
     Nurses  rarely hire  or train  the unlicensed  personnel                                                                   
     they  are required  to work  with,  yet their  employers                                                                   
     require  them to  make sure  these  persons perform  the                                                                   
     tasks delegated  to them in a safe and  accurate manner.                                                                   
     Because  these individuals are  unlicensed, there  is no                                                                   
     regulatory   body   overseeing    their   training   and                                                                   
     competency.                                                                                                                
                                                                                                                                
In terms of the definition of unlicensed  assistive personnel, she                                                              
said, there  are family  members  who are hired  under the  Choice                                                              
program who  take care  of the  patient and  in those cases,  they                                                              
would come under the authority of  a registered nurse. It would be                                                              
different than a  family member doing this out of  the goodness of                                                              
their  heart. She  didn't know  if  there was  wording saying  the                                                              
caregiver had to be employed.                                                                                                   
                                                                                                                                
SENATOR TORGERSON was looking at  the statute and said that it was                                                              
silent on that issue. Maybe they needed to think about that.                                                                    
                                                                                                                                
REPRESENTATIVE WILSON said the fact  that it's not mentioned means                                                              
that it would mean anyone, whether they were employed or not.                                                                   
                                                                                                                                
SENATOR TORGERSON said:                                                                                                         
                                                                                                                                
     That's not what  this says. Not to belabor  it. It says,                                                                   
     'The  term   also  includes,  but  is  not   limited  to                                                                   
     orderlies, assistants,  attendants and technicians.  For                                                                   
     the  purposes of  this delegation  criteria,  unlicensed                                                                   
     and assistive  personnel do  not include family  members                                                                   
     of the client immediate family  or guardians. So we have                                                                   
     to change  that to  say "may include"  if we want  to be                                                                   
     inclusive.                                                                                                                 
                                                                                                                                
MS. REARDON asked  why they need to go any further  than the first                                                              
sentence of that definition, which says:                                                                                        
                                                                                                                                
     Unlicensed assistive  personnel are individuals  who are                                                                   
     not  authorized to  perform nursing  acts or tasks  that                                                                   
     are regulated  by the Board  of Nursing except  pursuant                                                                   
     to legal delegation by a nurse.                                                                                            
                                                                                                                                
SENATOR TORGERSON  proposed amendment  #2 to  delete "do  not" and                                                              
insert "may".                                                                                                                   
                                                                                                                                
     The Board is  going to have to define it  anyway because                                                                   
     those regulations  were wrong  for what they  were doing                                                                   
     for delegation  to people who were home and  were family                                                                   
     members.  If they're  delegating  that  now, that  can't                                                                   
     happen because they would be under the same law.                                                                           
                                                                                                                                
CHAIRMAN STEVENS asked why the regulations  do not include members                                                              
of the client's immediate family.                                                                                               
                                                                                                                                
MS. REARDON  replied that this  language never became  regulation,                                                              
so it didn't go through the legal  review process. "These are just                                                              
an advisory opinion of the Board of Nursing."                                                                                   
                                                                                                                                
She said  the reason it didn't  include family members  is because                                                              
of the last sentence, which says:                                                                                               
                                                                                                                                
     Family   members  and  guardians   have  performed   and                                                                   
     continue  to perform these  activities without  specific                                                                   
     delegation.                                                                                                                
                                                                                                                                
     I suspect they were trying not  to constrict what family                                                                   
     members  could  do,  since the  rest  of  this  advisory                                                                   
     opinion puts constraints and  guidelines and rules about                                                                   
     the delegation.                                                                                                            
                                                                                                                                
She thought  they were trying to  say for family members  it could                                                              
be a more flexible system.                                                                                                      
                                                                                                                                
CHAIRMAN TORGERSON  said they don't  write laws or  regulations by                                                              
saying  historically   this  is   what  happens.  His   conceptual                                                              
amendment left the last sentence out.                                                                                           
                                                                                                                                
CHAIRMAN  STEVENS  asked  if  there were  any  objections  to  the                                                              
conceptual amendment.                                                                                                           
                                                                                                                                
TAPE 11, SIDE B                                                                                                               
                                                                                                                                
SENATOR DAVIS  said they  shouldn't put  family members  in there,                                                              
because  they  could  come  back  on the  nurses.  "How  can  they                                                              
supervise them if they're doing it  at home. The nurses are in the                                                              
hospitals working…"                                                                                                             
                                                                                                                                
SENATOR TORGERSON  said he thought  the family members  were being                                                              
paid, which  is a  big difference  and he  didn't think  they were                                                              
performing procedures.                                                                                                          
                                                                                                                                
MS. SENNER said that was the point she was making.                                                                              
                                                                                                                                
     Family members  are trained  by nurses and other  health                                                                   
     care  professionals to  do all kinds  of advanced  care,                                                                   
     giving I.V.s  or someone comes home on a  respirator and                                                                   
     the  family member  takes care  of  the respirator.  The                                                                   
     issue only comes into play when  they are hired, such as                                                                   
     under  the Choice program  and then  they do come  under                                                                   
     the authority of a nurse.                                                                                                  
                                                                                                                                
She thought  they should say:  "Unlicensed assistive  personnel or                                                              
individuals who are hired to perform health care services."                                                                     
                                                                                                                                
You would have the employment part in there, too.                                                                               
                                                                                                                                
SENATOR  TORGERSON said  they  could do  that  by regulation.  His                                                              
objective  was to define  the personnel  and he  thought they  had                                                              
done that  by adopting the definitions.  There is still  clearly a                                                              
role for the  Board of Nursing to play and the  regulatory process                                                              
to implement this law.                                                                                                          
                                                                                                                                
CHAIRMAN  STEVENS  said  there  were   no  further  objections  to                                                              
amendment #2 and it was adopted.                                                                                                
                                                                                                                                
REPRESENTATIVE WILSON supported the amendments.                                                                                 
                                                                                                                                
SENATOR  TORGERSON moved  to pass  SCSHB  276(L&C) from  committee                                                              
with individual  recommendations. There were no  objections and it                                                              
was so ordered.                                                                                                                 

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