BILL ANALYSIS
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|Hearing Date:July 9, 2001 |Bill No:AB |
| |1409 |
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SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
Senator Liz Figueroa, Chair
Bill No: AB 1409Author:Chan
As Amended:July 3, 2001 Fiscal:Yes
SUBJECT: Nursing Home Administrators Program.
SUMMARY: Establishes within the Department of Health
Services the authority to regulate and license nursing home
administrators and makes additional changes to the Nursing
Home Administrator's Act regarding the examination and
licensing of nursing home administrators, and makes other
various technical and conforming changes to the Act.
Existing law:
1)Transferred on July 1, 1998, the authority to regulate
and license nursing home administrators from the State
Board of Nursing Home Administrators to the Department of
Consumer Affairs (DCA).
2)Allowed for the DCA to enter into an interagency
agreement with the Department of Health Services (DHS) in
1998, to assume the duties, powers, purposes,
responsibilities, and jurisdiction of the former State
Board of Nursing Home Administrators.
3)Defines "nursing home" and "nursing home administrator."
4)Specifies that it shall be misdemeanor for any person to
act or serve in the capacity of a nursing home
administrator unless they hold a nursing home
administrator's license.
5)Exempts from licensure any person who serves as an acting
administrator when a licensed administrator is not
available because of death, illness, or any other reason,
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and specifies for what length of time a person may act in
the capacity of a NHA.
6)Exempts a person from licensure if they serve as an
administrator of a nursing home that is operated by a
religious organization.
7)Specifies the duties of the agency responsible for
implementing the Nursing Home Administrator's Act.
8)Requires a person who applies for licensure to be at
least 18 years of age, to have successfully completed a
general course of study or have comparable
combination of general education, background and experience
as specified in regulations, and pass a state
examination.
9)Requires the examination for NHAs to be provided at least
once a year.
10) Requires license renewal every two years and continuing
education as
specified in regulations.
11) Allows for a NHA licensee from another state to obtain
licensure in this state
if they can demonstrate knowledge of applicable California
laws and
regulations, and if the standards in the other state are
substantially
equivalent to this state.
12) Specifies when disciplinary action shall be initiated
against the NHA.
13) Provides for specified licensing, examination and
renewal fees.
This bill:
1)Establishes the Nursing Home Administrator Program
(Program) within the Department of Health Services (DHS)
and repeals the statute relating to licensure by the
former State Board of Nursing Home Administrators.
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2)Makes additions, changes and modifications to the
existing Nursing Home Administrator's Act and codifies
certain regulations pertaining to the Act.
3)Defines the "Administrator-in-Training Program" (AIT Program)
as a program approved by the Program in which qualified
persons participate under the coordination, supervision, and
teaching preceptor as defined.
4)Requires the Program to adopt rules and regulations, and
requires regulations adopted pursuant to the NHA Act prior to
January 1, 2002, to remain in effect if they are not in
conflict with the new Program and until new regulations are
adopted.
5)Requires a person who is acting in the capacity of an NHA,
without a license as specified, to act in that capacity for
no more than 10 days unless arrangements have been made for
part-time supervision that includes 8 hours per week of direct
onsite supervision, but under no circumstances shall a person
act in this capacity longer than two months unless approved by
the Program, and no longer than six months once approved.
Also, specifies that a person acting in this capacity for more
than 10 days must have management experience in a health
facility.
6)Allows a preceptor who supervises an administrator in training
(AIT), who acts in the capacity of an NHA without a license,
to have the total number of supervised training count towards
their overall training requirements of an AIT.
7)Specifies examination requirements as stated in current
regulations that requires applicants for an initial license as
a NHA to pass both a state and national examination. Requires
the state examination to be provided four times a year, rather
the once a year, and the national examination to be
computer-based and scheduled for the applicant after they have
been notified of their eligibility to take the examination.
8)Specifies education or experience requirements as stated in
current regulations and additionally allows a person to
qualify for the licensing examination if they:
a) Have a doctorate degree in medicine and a current valid
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license as a physician
and surgeon with 10 years of recent work experience, and
complete an approved
AIT Program of at least 1,000 hours.
b) Have ten years of full-time hospital administration
experience in an acute care
hospital with at least 60 semester units (or 90 quarter
units) of college or
university courses, and completion of an approved AIT
Program of at least a
1,000 hours.
9)Allows the 1,000 hours of training required in an AIT Program
to be waived if an applicant and preceptor can provide
compelling evidence that previous work experience directly
relates to NHA duties.
10) Requires an applicant who applies for the licensing
examination to submit a
declaration signed under penalty of perjury to verify his or
her work experience.
11) Exempts minor traffic violations from the statement of
whether the applicant has
been convicted of a crime.
12) Requires applicants for a NHA license to submit evidence of
electronic transmission
of fingerprints or fingerprints cards to the Program.
13) Allows the DHS to institute or continue with a proceeding
against the applicant for
the denial of the license even though the application has been
withdrawn by the
applicant.
14) Allows the DHS to institute or continue with a disciplinary
proceeding against a
licensee even if the license may have been suspended, expired,
cancelled or was
forfeited by operation of law or by order of the DHS or a
court of law.
15) Allows only a one-year period for an applicant to pass the
national and state
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examinations and to meet all requirements for licensure,
otherwise the applicant
will have to submit another application and examination fees
before attempting
further examinations.
16) Requires an applicant to read and sign an Examination
Security Agreement and
comply with its terms at the time of the examination.
17) Requires applicants to undergo a criminal record clearance
by submitting to the
DHS two sets of completed fingerprint cards for clearance by
the Department of
Justice and the Federal Bureau of Investigation
18) Requires the Program to require applicants to provide his or
her federal employer
identification number (FEIN) or social security number (SSN) at
the time of
application, issuance, or renewal of a NHA license. Limits the
use of this
information to the purpose of establishing the identification
of persons affected by
state tax laws and compliance with court orders for child
support.
19) Provides that any applicant or licensee failing to provide
his or her FEIN or SSN
shall be reported to the Franchise Tax Board (FTB) and subject
to penalties as
specified under the Revenue and Taxation Code, and in addition
the Program may
not process any application or license unless the licensee
provides the FEIN or SSN.
20) Requires the Program to provide the FTB with specified
information relating to
licensees upon request by the FTB.
21) Requires the Program to require compliance with any judgment
or order for support
prior to issuance or renewal of a license to NHAs.
22) Permits the Program to deny, suspend, revoke, or otherwise
restrict the license of
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an applicant or licensee for specified act(s) of misconduct
relating to the
examination required for NHAs. Specifies that is a misdemeanor
for any person
to engage in conduct to subvert or attempt to subvert the
administration of the
examination as described, and that a person found guilty of
this provision shall be
liable for actual damages to the agency administering the
examination not to
exceed $10,000.
23) Allows the examination to be administered and evaluated by
the DHS or a
contractor or vendor pursuant to a written agreement with the
Program or the
DHS.
24) Requires an applicant who fails to pass either the national
or state examination to
retake the entire national or state examination and allows
three attempts, after
which the applicant shall be required to receive additional
training as specified.
Requires the results of either examination to be provided
within 90 days and for a
license to be issued to an applicant who passes the examination
and meets all
other requirements of licensure.
25) Requires the license to be displayed in a locality that is
in public view in order to
inform patients or the public as to the regulatory agency they
may contact if they
have questions or complaints regarding the licensee.
26) Increases the fees for actual costs of the state and
national examinations and adds
a new fee for provisional licensure.
27) Allows applicants from another state to receive a
provisional license for one-year
if the other state has standards that are substantially
equivalent to those of this
state, and the applicant complies with all informational
requirements as specified.
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Requires applicants for a provisional license to pass the state
examination within
one year, and if not, then seek licensure in this state through
standard procedures.
28) Allows a licensee whose license has expired to be reinstated
under specified
circumstances.
29) Permits a licensee who does not intent to engage in activity
requiring NHA
licensure, to file a request to place his or her license in
inactive status.
30) Specifies subject areas for purposes of continuing education
(CE) of NHAs, and that
10 hours of CE shall be in the area of aging and patient care.
31) Requires an AIT Program to be developed by the NHA Program
in consultation with
representatives from the long-term care industry and advocacy
groups and specifies
what areas of instruction shall be included within the AIT
Program, and what
education and/or experience requirements an applicant must meet
to be eligible for
an AIT Program.
32) Provides that the Program shall approve preceptors to
provide a training program to
coordinate, supervise and teach persons seeking to qualify for
the licensing
examination. Requires a preceptor to provide a directly
supervised training
program, as defined, that includes a minimum or 20 hours per
week and a
maximum of 60 hours per week, be available by telephone at all
other times, and
meet other requirements as specified.
33) Requires each licensee to notify the Program of their
appointment or termination of
appointment as an administrator of a nursing home and provide
information as
specified that shall be considered as public information.
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34) Requires that within 24 hours after the NHA acquires actual
knowledge or credible
information about the occurrence of specified acts affecting
the administration of the
nursing home facility, that the NHA shall notify, in writing,
the DHS's office for
licensing and certification.
35) Requires the Program to establish a system for the issuance
of citations to
licensees, examinees, or participants of any program activity
offered or approved by
the program, and includes current regulations for issuing
citations and fines to
licensees.
36) Allows the Program to deny, suspend, or revoke a NHA's
license upon specified
grounds, including: gross negligence, incompetence, conviction
of a crime, using
fraud or deception in obtaining a license, treating or
attempting to treat any physical
or mental condition without being currently licensed to do so,
or violating any other
rules of regulation adopted pursuant to the Program.
37) Allows the Program to deny an applicant or licensee a
license based upon specified
grounds, and to deny, suspend or revoke a license or
participation in a specific
training program upon specified grounds.
38) Requires the Program to develop criteria to use to determine
whether a crime or act
is substantially related to the qualifications, functions or
duties of the NHA and use
such criteria when considering whether to deny, suspend of
revoke a license.
39) Requires the Program to develop criteria to be used to
evaluate the rehabilitation of
a person when considering the denial, suspension, or revocation
of a license.
40) Permits the Program to place a NHA licensee on probation in
lieu of formal
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disciplinary action and establishes criteria for the
probationary license.
41) Permits the Program to temporarily suspend any license prior
to any administrative
hearing if the action is necessary to protect the public
welfare and allows the
Program to suspend or revoke a license prior to any hearing
when immediate action
is necessary in the judgment of the Director of the DHS to
protect public welfare.
42) Permits the Program to make application to the Attorney
General or a district
attorney to request a superior court of any county to issue an
injunction or other
appropriate order to restrain conduct that constitutes or will
constitute a violation the
Program law.
43) Makes other various technical and conforming changes
relating to the licensure of
NHAs.
44) Contains double-jointing amendments to prevent
chaptering out a provision
in SB 26 (Figueroa) pertaining to names of boards and
bureaus.
FISCAL EFFECT: According to the Assembly Appropriations
analysis dated May 30, 2001, this measure would have
negligible fiscal impact on the state. The current
licensing program is budgeted at $479,000 (Nursing Home
Administrator's State License Examining Board Fund) for
five positions. This bill continues the program at its
current level, but transfers position and expenditure
authority from the DCA to the DHS.
COMMENTS:
1.Purpose. This bill is co-sponsored by the Department of
Health Services (DHS) and the Department of Consumer
Affairs (DCA) and is supported by the Administration.
According to the proponents, this measure will accomplish
the following:
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Clarify Authority for the Program . The Nursing Home
Administrator's License Law currently operates under an
interagency agreement between the DHS and the DCA and
will expire(d) as of June 30, 2001. Federal law imposed
the state licensure requirements for NHAs in 1970. At
that time the Board of Nursing Home Administrators
(Board) had the responsibility for licensing and
regulating NHAs. However, the Board was allowed to
statutorily sunset on July 1, 1998, which eliminated the
Board but not the licensing and regulatory
responsibility. The Board's authority automatically
transferred to the DCA under the sunset law. The DCA
renamed the Board of Nursing Home Administrators the
Nursing Home Administrator Program (Program) and entered
into the interagency agreement with the DHS. Both the
DHS and the DCA believe that permanently establishing the
Program within the DHS will strengthen the oversight
provisions of this regulatory program and ensure clear
state administrative accountability for its operation.
Allow for Applicants to take the National Nursing Home
Administrators Examination in California . Under the
National Association of Board of Examiners of Long Term
Care Administrators, every NHA must successfully pass the
national Nursing Home Administrator Licensing Examination
to be licensed. The national examination is recognized
as an official and acceptable examination covering
federal regulations regarding long-term care facilities.
Current law limits California from charging the
appropriate fee to participate in the national
examination, and California residents must register to
take the examination in other states (Oregon and Neveda).
California is the only state which is unable to
participate in this examination. This measure will
provide appropriate fee authority so the national
examination can be provided in California.
Address the Critical Workforce Shortage for NHAs within
California . As explained by the proponents, there has
been a 17 percent reduction in licensed NHAs in
California since 1993/94 fiscal year. Adequate and
qualified management is a key component in determining
the quality of care provided by any nursing home. This
bill contains a number of provisions to enhance the
ability of the industry to hire, train and develop
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quality administrator staff. The bill makes changes to
improve the AIT Program to better prepare participants
for the licensure examination and the challenge of
managing skilled nursing facilities and establishes a
provisional license to allow out-of-state NHAs in good
standing to begin working within California prior to
taking the state examination. The long-term care
industry has also developed a partnership with Program to
improve the process of training and examinations in an
effort to increase the number of qualified
administrators. This bill includes recommendations
resulting from that partnership.
Improve the Effectiveness of Enforcement and Disciplinary
Actions . The Program currently conducts criminal
background checks for applicants. This bill will clarify
the convictions which will preclude applicant's from
licensure and will allow for fingerprint verification by
the Department of Justice and the FBI. It also clarifies
under what circumstances a license may be denied,
suspended or revoked.
Reduce Program Costs and Improve Efficiency . The Program
is a fee supported program and has sufficient funding to
support the program through 2002/2003 Fiscal Year. As
indicated by the sponsors, the consolidation of functions
and continued refinement processes within DDS is
anticipated to reduce program costs. The staffing and
systems analysis that will be provided to the Legislature
under this legislation will allow the Program to describe
functions, costs, and identify the shortfall in fees
which may need adjustments by the Legislature.
2.Sunset Review of the Board of Nursing Home Administrators
(Board).
During the 1996/97 review of the Board it was recommended
by the Joint Legislative Sunset Review Committee (JLSRC)
that the existing statutory program of the Board,
including licensing, enforcement, regulatory authority,
and administrative review of all enforcement and
licensing actions of the NHA License Law be transferred
to another agency, preferably the DHS. There was general
agreement by all interested parties, including the board,
that it was having difficulty carrying out its legal
mandates. However, there was disagreement as to what the
causes of the problem were. It appeared as if the Board
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was experiencing a declining licensing population, an
associated revenue loss and combined rising costs which
were rippling the Board.
The Board recommended the continuation of regulation by the
Board, while noting the economic and enforcement
hardships it had endured. The industry recommended that
the Board be eliminated. As indicated by the JLSRC,
states are afforded considerable flexibility with respect
to licensure of nursing home administrators. Federal law
does not require the existence of a "board" structure in
order to meet the federal licensing requirement. Either
a state healing arts agency or a dedicated board may be
designated to carry out the federal mandate. The JLSRC
pointed out that the Department of Health Services
presently provides for the licensing, inspection and
enforcement of nursing home facilities. In addition, DHS
had experience with the licensure of individual
practitioners through its existing program to license
clinical laboratory technicians and purfusionists.
3.Arguments in Support. According to the co-sponsor of
this bill, the Department of Consumer Affairs , this bill
will follow through on recommendations made by the JLSRC.
Permanently transferring the program to the DHS will
allow the Department to pursue alternative sources of
funding, including federal monies available through the
Health Care Financing Administration. In addition, the
DHS will be able to incorporate regulation of
administrators with its enforcement of nursing home
facilities to streamline and strengthen enforcement
efforts. The DCA also indicates, that by increasing the
frequency and implementing a provisional license, the
number of qualified nursing home administrators in the
state should increase.
The California Association of Health Facilities supports
the changes in this measure and also appreciates the
language which addresses: frequency of testing,
examination fees, reciprocity for out-of-state
administrators, provisional licensing, and changes to the
preceptor qualifications and AIT training program. In
addition, they would like to acknowledge the willingness
of the DDS to work with all of the provider groups to
address the concerns they had with the original language
within this measure.
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The California Association of Homes and Services for the
Aging supports this bill and indicates the current NHA
Program has made significant progress and improvement
since moving to the DHS, and that because of the clinical
nature of the nursing home administrator licensing
category, the program has been better served by the DHS
regulatory staff having specific knowledge of the
industry. The American Association of Retired Persons is
also in support of this measure and states that the more
oversight and training that the DHS can exercise over
NHAs the better off Californians living in nursing homes
will be.
4.Arguments in Opposition. The American Civil Liberties
Union (ACLU) is opposed to this measure for the following
reasons: (1) The standard provided in this bill for
rehabilitation would be almost impossible to meet; (2)
that the standard for denying employment based on crimes
committed should conform to the constitutional standard;
and, (3) requirements for citizenship/ immigration status
(Opposition is based on a May 23, 2001 letter and
appears as if this measure may have been amended to
address these concerns.)
5.Sponsors Should Consider the Following Changes:
a) Cite Chapter 2.35 as the "Nursing Home Administrator's
Act."
b) Allow for additional time based on extenuating
circumstances for an
applicant to complete the application process and pass
the examinations
without having to re-apply and pay additional fees.
c) Clarify sections 1416.75, 1416.76 and 1416.77 that
pertain to reasons for
the program to deny, suspend or revoke a license or
participation in a
training program. Appear duplicative and inconsistent
in application.
Should also separate out subdivision (e) and (f) of
section 1416.76, that
deals with developing rehabilitation and substantially
related criteria and
include in a separate section.
6.Technical Corrections Needed:
a) On page 21, line 8, should read: "for each three-year
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period."
b) On page 37, line 27, delete the word "board" and insert
"program"
c) On page 40, line 13, after "program" insert "to"
SUPPORT AND OPPOSITION:
Support : Department of Consumer Affairs (Co-Sponsor)
Department of Health Services (Co-Sponsor)
American Association of Retired Persons
California Association of Health Facilities
California Association of Homes and Services
for the Aging
The Office of the Governor
Opposition :American Civil Liberties Union
Consultant:Bill Gage