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.