Analysis

Topic: Nurse Aides
Sponsors: Representatives Caul, Scranton, Kuipers, et al.
Committee: House Senior Health, Security and Retirement
Date Introduced: March 13, 2001
Date of Analysis: March 19, 2001

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

Background: Federal law requires states to provide for a process for the receipt and timely review and investigation of allegations and neglect and abuse and misappropriation of resident property by a nurse aide or by another individual providing services to the resident.

Description of Bill: The bill prohibits a nurse's aide or other employee from physically, mentally, or emotionally abusing, mistreating, or harmfully neglecting a patient or from committing a theft or larceny of the patient's personal property. The bill establishes a procedure in the department for investigation of reports of violation. There are timelines in the bill for commencing the investigation, notification of the individual alleged to have violated the law, a hearing, and final disposition.

Arguments For: The bill merely establishes the procedure required by federal law. The procedure will result in much more timely investigation and disposition of cases than has been the case in the past.

Arguments Against: Although federal law requires a procedure for investigation and disposition of these cases, the federal requirement is limited to nurse aides and licensed persons. Licensed persons would include the nursing home administrator, a nurse, a doctor, or physical therapist providing services to residents, but it does not include the janitor, a maintenance person, or a clerical employee of the facility. The department has no authority under federal or state law to conduct investigations and take action against unlicensed individuals. By requiring us to do so the bill would set a bad precedent and is arguably unconstitutional.

The bill places theft or larceny of resident personal property on the same level as physical, mental, or emotional abuse, mistreatment, or neglect. There is no way that stealing a resident's glasses comes up to the level of abuse of that resident, but the department would be required to treat them the same as far as process goes. The bill goes well beyond federal law in this respect. Federal law merely makes reference to "misappropriation of resident property", which has generally been interpreted as something different than petty theft or larceny.

The time frames in the bill are unrealistic. It would not be unreasonable to expect these cases to be resolved in the same time frame as other Public Health Code cases (one year, with the option of a 30-day extension). Although it would clearly be desirable to remove a suspected abuser from a nursing home as soon as possible, the department has the authority under the Code to do a summary suspension in the same way it might take immediate action against any other health professional who poses a serious threat to the public.

Supporters/Opponents: No information is available on supporters or opponents at this time.

Fiscal Impact: The bill may have a significant fiscal impact on the Bureau of Health Services in the Department of Consumer and Industry Services by requiring increased staffing or diverting resources from other health professional cases to meet the deadlines in the bill. The Bureau of Health Services actually has no funds for handling these cases. New general funds would be required. The Public Health Code provides for the use of the Health Professional Regulatory Fund for the licensed professions, but using these funds for implementing House Bill 4450 would be illegal. Although the Bureau has federal funds to run this program, the federal government will not increase the amount paid to the state because the revised process is not a federal initiative. If the bill passes without an appropriation, the department will be in a position of having no legal method of funding the implementation

Administrative Rules: No changes in administrative rules are anticipated at this time.