Analysis

Topic: Nurse Aides
Sponsor: Representative Caul
Committee: Senior Health, Security & Retirement
Date Introduced: May 9, 2000
Date of Analysis: May 12, 2000

Position: The Department of Consumer and Industry Services does not support the bill.

Description of the Bill:
The bill amends Section 21771 of the Public Health Code to establish procedures and timelines for Department of Consumer and Industry Services handling of cases involving nurse aides.

The department would be required to investigate allegations against a nurse aide pursuant to Section 1819 (g)(1)(C) of Part A of Title XVIII of the Social Security Act. This section of federal law requires the state to provide for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide. However, the nature of the process and the timelines are not specified by federal law. Under the process established in the bill, the investigation must begin within 10 days after receiving a report and must be completed within 30 days. The time period for completion of the investigation may be extended for an additional 30 days by the department if sufficient reason for the delay is documented. Within 10 days after completing the investigation the department is required to notify the individual who is the subject of the investigation. A copy of the notice must also be sent to the nursing home involved in the investigation.

A hearing held by the department pursuant to Section 1819 (g)(1)(C) of Part A of Title XVIII of the Social Security Act must be conducted as a contested case hearing. The Attorney General will represent the department in the hearing. The Department of Consumer and Industry Services is required to give notice and an opportunity to intervene in the proceedings to the nursing home employing the individual who is the subject of the hearing. Within 10 days after completion of the hearing, the department is required to notify the nurse aide, and, if a determination of neglect or abuse or misappropriation of resident property is made by the department, the nurse aide registry.

Arguments For:
The bill places into Michigan law the procedure which is required by federal law. This procedure will facilitate quicker resolution of complaints against nurse aides. It will benefit the aides, the nursing home and the residents.

Arguments Against:
Although federal law requires a process, it does not mandate time frames. The proposed bill would create a process with unrealistic timelines. For one thing, it may not always be practical for the department, as required in Section 21771 (6) to commence an investigation within 10 days after receiving a report of abuse, neglect or theft of property. The information received with the original allegations is often minimal. In such cases, it is necessary to obtain additional information by telephone and mail. We get our medical records and other data through this method. This immediate post-allegation stage should not be considered to be part of our investigation.

Federal law requires the department to notify the Nurse Aide being investigated. However, the implication in federal law is that this notice occurs after the investigation is completed. The department doesn't do this for any health profession we license and regulate and for good reason. Early notice could lead to problems with evidence being tampered with before we get our investigation done. This notice should be dropped from the bill.

There are concerns about the proposed time frames in House Bill 5759. First, it makes no sense to have 30 days to investigate a nurse aide when we have 90 days to investigate a licensed practical nurse who may be working in the same facility. Potentially we could have an abuse case against both, but under the bill we would be granted different time frames for an LPN working in a nursing home and a CENA working in the same home. If there is a desire to establish time frames, it is suggested that the same time frames we currently have in PA 368 for licensed health professionals be used. Second, based on data from the Bureau of Health Systems there were 1,688 reports of abuse in FY '97, 857 in FY '98 and 1,321 in FY '99. While this data is preliminary, it represents half of all the allegations the Bureau of Health Services averages for all other health professionals, or about 2,200 per fiscal year. There were 633 investigations in FY 97, 407 in FY '98 and 289 in the first three quarters of FY '99. The proposed time frames will create real problems for the department and will divert resources from other types of health professional cases.

Section 21771 (7) provides the department with 10 days from the completion of the investigation to file a formal complaint. This time frame coupled with Section 21771 (9), which requires the Attorney General's Office to represent us in all of these cases and for the cases to be done as formal contested cases, makes the process unmanageable. If this is to stay in I suggest it clearly state this is a shared responsibility, we draft the less complicated cases and AG does the complex cases. I also suggest this be melded into a one year time frame, which would be the same as we have with licensed health professions.

There are problems with the portion of the bill relating to the administrative hearing. Section 21771 (9) allows the nursing home to be a party to the hearing. This is unnecessary and is not required by federal law. This essentially turns the administrative hearing into an employer/employee grievance process. The Attorney General will call the employer or employer managers/supervisors as witnesses if they are needed. This provision seems to be attempting to make the Attorney General and the employer co-prosecutors on these cases. This is unprecedented in administrative law and would be undesirable.

Section 21771 (10) requires Bureau of Hearings to complete their Proposal For Decision and the final order within 10 days of holding the hearing. This is totally unrealistic. A more realistic turnaround for these documents is 90 days. If quick action is needed on a particular case, the department has the option of a summary suspension under Section 92 of the Administrative Procedures Act.

Supporters/Opponents: No information is available at this time.

Fiscal Information: Functions related to the Nurse Aide Registry are handled by the Bureau of Health Services in the Department of Consumer and Industry Services. The bill will have a significant fiscal impact on the department by requiring the assignment of increased resources to this function.

Administrative Rules Impact: There is no administrative rulemaking authority in this part of the Public Health Code. However, there is general rulemaking authority in Section 2233 of the Public Health Code which could be used. Administrative rules may be necessary to further clarify the administrative hearing process in the bill.