BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Deborah V. Ortiz, Chair
BILL NO: AB 2564
A
AUTHOR: Matthews
B
AMENDED: June 8, 2006
HEARING DATE: June 14, 2006
2
FISCAL: Rules / Appropriations
5
6
CONSULTANT:
4
Vazquez / ak
SUBJECT
Health facilities: criminal record clearances
SUMMARY
This bill exempts from the criminal record clearance
requirement direct care staff employed as consultants in
various intermediate care facilities who have already
obtained a criminal record clearance. In addition, the
bill authorizes direct care staff, who are trained and
certified by a registered nurse acting within the scope of
his or her practice, to administer blood glucose testing
for a person with developmental disabilities who has
diabetes and who is residing in an intermediate care
facility/developmentally disabled habilitative or an
intermediate care facility/developmentally disabled
nursing, if specified criteria are met.
ABSTRACT
Existing law:
1.Establishes intermediate care facilities as health
facilities that provide inpatient care to ambulatory or
non-ambulatory patients who have recurring need for
skilled nursing supervision and need supportive care, but
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who do not require availability of continuous skilled
nursing care. Defines the services provided by
intermediate care facility/developmentally disabled
habilitative (ICF/DD-H), intermediate care
facility/developmentally disabled (ICF-DD), and
intermediate care facility/developmentally disabled
nursing (ICF/DD-N).
2.Requires the Department of Health Services (DHS), prior
to the initial licensure or renewal of a license of any
person or persons to operate or manage an ICF/DD-H,
ICF/DD-N, and ICF/DD, to secure from an appropriate law
enforcement agency a criminal record to determine whether
the applicant, facility administrator or manager, any
direct care staff, or any other adult living in the same
location, has ever been convicted of a crime other than a
minor traffic violation. Exempts from this requirement
ICF/DDs operated by the state that secure criminal record
clearances for their employees, as specified.
3.Defines "direct care staff" as all facility staff who are
trained and experienced in the care of persons with
developmental disabilities and who directly provide
program and nursing services to clients. Requires
administrative and licensed personnel to be considered
direct care staff when directly providing program and
nursing services to clients. Requires persons employed
as consultants and acting as direct care staff to be
subject to the same requirements for a criminal record
clearance as other direct care staff. Prohibits the
employing facility from being required to pay any costs
associated with that criminal record clearance.
4.Requires DHS to develop procedures to ensure that any
licensee, direct care staff, or certificate holder, for
whom a criminal record has been obtained, as specified,
is not required to obtain multiple record clearances.
5.Authorizes specified persons who are not licensed health
care professionals, but who are trained to administer
injections by a licensed health care professional, to
administer injections of insulin, and to perform glucose
monitoring, as prescribed by a child's physician, to a
foster child placement.
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This bill:
1.Specifies that DHS shall secure from the Department of
Justice (DOJ) a criminal record to determine whether an
applicant, facility administrator or manager, any direct
care staff, or any other adult living in the same
location, has ever been convicted of a crime other than a
minor traffic violation.
2.Requires that the applicant be responsible for any cost
associated with transmitting the fingerprint images for
criminal record clearance purposes.
3.States that the criminal record clearance shall be
completed prior to the direct staff contact with
residents of the facility.
4.Asserts that the criminal record clearance shall be
complete when DHS has obtained the person's criminal
record information from the DOJ and has determined that
he or she is not disqualified from engaging in the
activity for which the clearance is required.
5.Adds to those currently not required to obtain multiple
criminal record clearances a person who meets all of the
following criteria:
a. The person is employed as a consultant and acts as
direct care staff;
b. The person is a registered nurse, licensed
vocational nurse, physical therapist, occupational
therapist, or speech-language pathologist;
c. The person has obtained a criminal record clearance
as a prerequisite to holding a license or certificate
to provide direct care services;
d. The person has a license or certificate to provide
direct care service that is in good standing with the
appropriate licensing or certification board;
e. The person provides time-limited specialized
clinical care or services; and,
f. The person is not left alone with a client.
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6.Permits a registered nurse acting within his or her scope
of practice to require direct care staff in an ICF/DD-H
or ICF/DD-N to administer blood glucose testing for a
person with developmental disabilities who resides at the
facility and who has diabetes, if all of the following
criteria are met:
a. The blood glucose testing is ordered by a physician
and the results of the testing are reported to a
registered nurse as specified in the physician's
order.
b. Prior to performing the blood glucose testing, the
direct care staff is trained by the registered nurse
to perform the testing and demonstrates proficiency in
performing the testing while under the immediate
supervision of the registered nurse.
c. Training of direct care staff to perform blood
glucose testing shall include, but not be limited to,
an overview of the basic disease process of type I and
type II diabetes, recognition of the signs and
symptoms of hypoglycemia and hyperglycemia, the role
of nutrition management in diabetes, diabetes and
blood sugar control, long term complications of
diabetes, specific instruction in utilizing and the
use of specific over-the-counter glucose monitoring
device that is approved by the FDA, including the
cleaning and maintaining the accuracy of the
client-specific glucose monitoring device, proper
infection control practices related to the use of the
device, including the handling and disposal of
infectious waste, and recording accurate records of
blood glucose readings in the client medical record.
Requires records of blood glucose readings to be
reviewed by the facility registered nurse at least
monthly.
d. A signed written statement shall be prepared by the
registered nurse that includes a certification, to be
placed and maintained in the direct care staff's
training record, of the direct care staff's competence
to perform the testing and that identifies the clients
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residing at the facility for whom the certification is
applicable.
e. The certification of competence to perform the
blood glucose testing shall be procedure and client
specific, and shall not be transferred between clients
residing at the facility or other facilities.
f. The registered nurse shall be responsible for
monitoring and implementing the direct care staff
blood glucose testing. At least once every three
months, the registered nurse shall observe and confirm
the direct care staff person's proficiency in
performing the approved testing and shall update the
certification.
g. A registered nurse shall provide continuing
inservice education on the management of diabetes and
the use of blood glucose monitoring devices not less
than once per year and include documentation of the
content of the training and the staff who were in
attendance.
h. A facility shall develop a written policy and
procedure governing blood glucose testing for clients
residing at the facility that shall include procedures
for the training and competency assessment of direct
care staff as required by this section.
i. A facility shall have received a certificate of
waiver pursuant to subdivision (n) of Section 483.460
of Title 42 of the Code of Federal Regulations prior
to the implementation of blood glucose testing and
shall retain a copy of the CLIA waiver for inspection
by the department.
FISCAL IMPACT
According to the Assembly Appropriations Committee, likely
minor general fund savings to Medi-Cal and minor loss of
fee revenue to the Department of Justice by reducing the
number of criminal record background checks performed.
The author anticipates that the second section of the bill
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authorizing direct care staff to administer blood glucose
testing is cost-neutral, as the intent in drafting the bill
was for it to be self-implementing and the training for
this staff can be added to the training that is already
being conducted for medication administration.
BACKGROUND AND DISCUSSION
This bill requires applicants to submit fingerprint images
to the DOJ and for a criminal record clearance to be
completed prior to direct staff contact with residents of
ICF/DDs, ICF/DD-Hs, and ICF/DD-Ns. The bill also expands
the list of individuals who are not required to obtain
multiple criminal record clearances, only if certain
specified conditions are met. In addition, the bill
permits direct care staff, under the direction and
oversight of a registered nurse and meeting specific
requirements, to administer blood glucose testing for
clients with diabetes in these facilities.
Developmental services providers
According to the California Association of Health
Facilities (CAHF), "developmental services providers" is a
professional term that identifies facilities, licensed by
DHS, which provide services to persons with developmental
disabilities. These services include, but are not limited
to, training and support in life skills such as mobility,
socialization, employment, and recreation. There are more
than 950 licensed developmental services providers in
California.
ICF/DDs are a category of developmental services
providers with 16 or more beds. Individuals may have
intermittent or continuous needs for nursing care.
There are approximately 20 ICF/DDs in California.
ICF/DD-Hs are a second category of developmental
services providers with less than 15 beds.
Individuals usually have intermittent needs for
nursing care. The term "habilitative" means services
are provided for the purpose of enhancing or
preventing regression of intellect, functional skills,
and the emotional well-being of the person.
Typically, care is provided in a group home setting
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and CAHF indicates that more than 85 percent of
California's 789 ICF/DD-H facilities contain six or
fewer beds.
ICF/DD-Ns are facilities of 15 beds or less that
serve persons with developmental disabilities who have
continuous needs for nursing care for monitoring of
medications or conditions, such as epilepsy. More
than 90 percent of ICF/DD-N clients utilize
wheelchairs and there are approximately 345 ICF/DD-Ns
in California.
Criminal record clearance
CAHF, one of the sponsors of this bill, asserts that the
first section of the bill addresses a recent change in DHS
policy that has increased facility costs and delayed the
hiring of clinical care consultants in ICF/DDs. The old
DHS policy exempted from criminal background requirements
licensed clinical consultants, such as nurses and
therapists, who were independent contractors. However, in
2004, DHS revised the policy guidance and required
additional background clearance on all licensed
consultants, although the licensed vocational nurse,
registered nurse, or physical therapy consultant already
passed an existing criminal background clearance through
their licensing or certification board. CAHF believes the
exemption in this bill is necessary since facilities
already verify that the individual they seek to hire is in
good standing with their licensing board.
Current law requires a criminal record clearance for direct
care staff, which includes registered nurses, licensed
vocational nurses, physical therapists, and certified nurse
assistants, who directly provide program and nursing
services to clients in ICF/DDs. Upon employment of such
personnel, and prior to contact with any clients, a
facility must submit the fingerprints of potential
employees to DHS. DHS in turn submits the fingerprints to
DOJ which conducts the criminal background check and
verifies any convictions that exist. Existing law
specifies certain convictions which result in mandatory
denial of employment in ICFs. These convictions include
abduction, assault, sexual abuse of a child, embezzlement,
extortion, petty theft, and receiving stolen property.
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However, existing law allows DHS to reconsider an
application, even if a specified criminal conviction
exists, by considering the length of the conviction,
rehabilitation, dismissal of a conviction, nature and
seriousness of the offense, and employment history.
In his January 2006 Budget, the Governor proposed a number
of changes to the licensing and certification programs
within DHS to modernize licensing systems, maximize the use
of program resources, and use licensing fees to support
these activities where appropriate. The Governor's
proposals include licensing fee increases, and increasing
positions in the Fingerprint Investigation Unit to address
backlog.
Direct care staff and glucose monitoring
The author writes that the second section of this bill,
which authorizes direct care staff who provide care and
services to clients in ICF/DD-Hs and ICF/DD-Ns to perform
blood glucose monitoring tests, is a necessary change for
quality of care in these facilities. The change is
appropriate as long as staff have received training and
have demonstrated their competency to perform the
monitoring. The language in the measure is modeled after
current regulations that allow direct care staff in ICF/DD
facilities to administer medication to clients when the
direct care staff have successfully completed a program in
medication administration and has demonstrated a
proficiency in handling, administering, and recording of
the drugs given.
The bill requires that the results of the testing be
reported to a registered nurse as specified in the
physician's order. As a means of oversight, records of
blood glucose readings are required to be reviewed by the
facility registered nurse at least monthly. The registered
nurse is also responsible for monitoring and implementing
the direct care staff glucose testing and at least once
every three months, the nurse is required to observe and
confirm the direct care staff person's proficiency in
performing the approved testing and shall update the
certification.
A 1994 Advisory Statement on Unlicensed Assistive Personnel
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from the Board of Registered Nursing indicates that tasks
that are judged by the registered nurse to not require the
professional judgment of the nurse may be assigned. Such
assigned tasks are required to be considered routine care
of the patient, pose little potential hazard for the
patient, involve little or no modification from one
client-care situation to another, be performed with a
predictable outcome, and not inherently involve ongoing
assessments, interpretations, or decision-making. The
statement warns against the assignment of tasks for the
medically fragile, who are defined as a patient
experiencing an acute phase of illness or who is in an
unstable state that would require ongoing assessment by a
registered nurse.
Related legislation
SB 1759 (Ashburn) in the current legislative session
relates to criminal background clearances and is under
consideration in the Assembly. AB 2564 has been amended
to reconcile its contents with the proposal included in
this measure.
AB 1964 (Nakanishi), which failed passage in the Assembly
Health Committee in the current legislative session,
included a version of this proposal regarding ICF/DDs.
Stakeholders held discussions upon the failure of the
bill and AB 2564 is the product of those talks.
Arguments in support
CAHF writes that AB 2564 would restore the common-sense
policy of exempting facility personnel from having to
obtain multiple background checks, as long as the facility
is able to verify that the individual they seek to hire is
in good standing with their licensing board. This is the
same procedure that skilled nursing facilities use when
hiring licensed staff. The Association of Regional Center
Agencies states that passage of this bill would streamline
the hiring process for qualified, licensed, and/or
certified staff to serve persons with developmental
disabilities.
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The American Diabetes Association (ADA), a co-sponsor of
this measure, writes that blood glucose testing is a
requirement for diabetes management and is the only way to
determine the blood glucose level of a person with
diabetes. The ADA states that it is critically important
for people with diabetes and caregivers of people with
diabetes to have the ability to obtain this information.
This is particularly true in cases where, due to disability
or other cause, the individual with diabetes is not able to
communicate when
they are feeling poorly or suspect that they are
experiencing hypoglycemia. Early detection of hypoglycemia
can prevent serious diabetes complications and long-term
health risks. In addition, medical technology has advanced
and there are devices to safely, accurately, and easily
check blood glucose levels. The ADA states that these
provisions are consistent with current law for care of
minors with diabetes in day care and foster care homes and
facilities.
PRIOR ACTIONS
Assembly Floor: 74 - 0 Pass
Assembly Appropriations: 17 - 0 Do Pass as Amended
Assembly Health: 12 - 0 Do Pass as Amended
POSITIONS
Support: American Diabetes Association (co-sponsor)
California Association of Health Facilities
(co-sponsor)
Association of Regional Center Agencies
California Nurses Association
Oppose:None received.
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