Senate Committee on Health and Human Services (01/14/2009)

Final
STAFF SUMMARY OF MEETING

SENATE COMMITTEE ON HEALTH AND HUMAN SERVICES

Date:	01/14/2009	ATTENDANCE

Time:	10:07 AM to 01:05 PM	Carroll M.	X
		Mitchell	X
Place:	SCR 352	Morse	X
		Newell	X
This Meeting was called to order by		Schultheis	X
	Senator Boyd	Tochtrop	X
		Boyd	X
This Report was prepared by
	Elizabeth Burger
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
Introductory Comments Sunset Review of Psychiatric Technicians Licensure Sunset Review of Nurse Aide Certification Program Sunset Review of Med. Admin. by Unlicensed Persons		- - - -

10:07 AM -- Introductory Comments

Senator Boyd, chair of the committee, gave introductory comments regarding the committee, and noted that Senator Lundberg would be appointed to the committee tomorrow. She reviewed a committee procedural memorandum (Attachment A). Senator Boyd asked that members of the committee limit their computer usage during committee hearings.

10:09 AM -- Sunset Review of Psychiatric Technicians Licensure

Brian Tobias, Department of Regulatory Agencies (DORA), introduced himself and gave the committee an overview of the sunset review process. The sunset review process is intended to ensure that the General Assembly has an opportunity to review the programs it creates. A sunset review is triggered when a sunset clause is included in a bill, specifying the date by which the report must be conducted. The sunset process requires the General Assembly to take affirmative action to ensure the programs are continued. State statute specifies nine criteria used to evaluate programs in a sunset review, and Mr. Tobias reviewed the criteria. He noted that DORA makes an effort to contact individuals who are part of the profession subject to the sunset review. He noted that the recommendations of DORA are included in reports, and are ultimately become part of a draft bill which is considered by a committee of reference.

10:15 AM

Senator Boyd asked Mr. Tobias to begin his comments related to the Sunset Review of the Psychiatric Technicians Licensure Program (Attachment B). He referred to a draft bill containing the recommendations of the report (Attachment C). He described the professional responsibilities of psychiatric technicians, noting that such technicians may administer medications. Psychiatric technicians may only practice under the supervision of a physician or registered nurse. Psychiatric technicians work with the developmentally disabled or the mentally ill, are employed in large part by the Department of Human Services, and work primarily in state-operated facilities, including the mental health institutions and Fort Logan and Pueblo and the regional centers for individuals with developmental disabilities at Wheat Ridge, Pueblo, and Grand Junction. Psychiatric Technicians are regulated by the Board of Nursing.

10:18 AM

Mr. Tobias described DORA's recommendations with regard to the regulation of psychiatric technicians. The first recommendation is that the licensing and regulation of psychiatric technicians should continue for five more years, at which time, the licensing of the profession should be permitted to sunset. The second recommendation is that the statutory prohibition against nurses delegating the selection of medication to someone not authorized by law to do so be repealed. He discussed the reasons why DORA is recommending that the regulation of psychiatric technicians ultimately sunset. Mr. Tobias noted DORA's position that the only portion of psychiatric technicians' practice that requires regulation is the administration of medication. He noted that DORA's recommendation is to sunset the regulation of psychiatric technicians, not to sunset the profession. He stated that Colorado is only one of two states that currently licenses psychiatric technicians. Mr. Tobias responded to questions from Senator Mitchell regarding regulation of psychiatric technicians in other states. Mr. Tobias listed the states that have the highest number of psychiatric technicians, noting that none of those states license psychiatric technicians. He noted that most psychiatric technicians work for the Department of Human Services, and sunsetting the licensing of psychiatric technicians would permit the Department of Human Services to develop training programs for technicians specific to their work with the department. He stated that the five year time period prior to sunset would permit the Board of Nursing to develop a training program for certified nurse aides (CNAs) with medication authority to meet the needs of psychiatric technicians who dispense medications.

10:31 AM

Mr. Tobias responded to questions from Senator Carroll regarding complaints against psychiatric technicians. Mr. Tobias responded to questions from Senator Morse regarded the recommended five year wind down period, stating that the medication administration authority for CNAs will be a complicated issue, and that the five year time period was intended to allow sufficient time to allow rule making on the issue to occur. Senator Morse asked if three years would be sufficient, and Mr. Tobias stated that he believed it would be. Senator Tochtrop expressed concern regarding eliminating licensure of psychiatric technicians. Mr. Tobias responded to questions from Senator Newell regarding consistency of training for psychiatric technicians, and whether training programs may be eliminated as a result of the sunset recommendations. Senator Tochtrop commented on the need for specialty care for vulnerable populations and expressed concern that without licensure the standards for the profession of psychiatric technicians will be lowered.

10:51 AM

Mr. Tobias responded to a question from Senator Mitchell regarding whether the lack licensure for the profession of psychiatric technicians has affected public safety in other states. Senator Newell asked for more information about California, which is the only other state that licenses psychiatric technicians.

10:54 AM

Jocelyn Gay, Department of Human Services, stated that the department participated in the review and had input into the report. She stated that the department is neutral on the report, and that the department respects the work of licensed psychiatric technicians. She described the training program for psychiatric technicians at Pueblo Community College, which trains technicians for employment at the Colorado Mental Health Institute (CMHI) at Pueblo. She stated that the department believes the five-year time period for the sunset of licensure of psychiatric technicians is appropriate and will allow the department to transition to a different model of care. She stated that if psychiatric technicians are not licensed, they would still continue to do much of what they current do, but that nurses would administer medications. Ms. Gay responded to questions from Senator Mitchell regarding the changes that would occur in the staffing of the CMHI at Pueblo if the licensure of psychiatric technicians were to end. She stated that the CMHI at Pueblo would likely not employ CNAs with medication authority to administer medications in lieu of administration by psychiatric technicians. She further noted that the CMHI at Fort Logan currently uses a model where nurses administer medications. Ms. Gay responded to questions from Senator Carroll regarding how patient complaints would be handled, noting that there are mechanisms in place currently for complaints related to other unlicensed professionals who work at the institutes. Ms. Gay further responded to questions from Senator Carroll regarding whether that complaint data is made public.

11:08 AM

Ms. Gay responded to comments from Senator Tochtrop regarding medication administration by nurses rather than psychiatric technicians. Ms. Gay responded to questions from Senator Boyd regarding whether the department would be comfortable with a three year rather than five year sunset period.

The following witnesses testified:

11:14 AM -- Bill Ortiz, Psychiatric Technician, testified regarding the difficulty of the work of physiatric technicians in the CMHI at Pueblo. He stated that CNAs will not be a good fit for CMHI at Pueblo and that the current system of licensure for psychiatric technicians works well. He distributed a comparison document of the recommendations of the 1994 sunset review of the licensure of psychiatric technicians and the current review (Attachment D). Senator Mitchell commented on the profession of psychiatric technicians. Mr. Ortiz responded to questions from Senator Morse, stating that he believed if licensure was ended, the training program for psychiatric technicians at Pueblo Community College would be eliminated. He responded to questions from Senator Morse regarding the lack of licensure of psychiatric technicians in other states. Mr. Ortiz responded to questions from Senator Newell regarding turnover in the profession.

11:30 AM -- Paul Barela, Psychiatric Technician, described the differences in the practice of psychiatric technicians and CNAs. He testified in opposition to the recommendations of the DORA report.

11:33 AM -- John Ramos, Psychiatric Technician, testified that there is a need in the public and private sectors for psychiatric technicians. He testified regarding the work of psychiatric technicians at the CMHI at Pueblo. Mr. Ramos responded to questions from Senator Carroll, noting his believe that licensing the profession gives it credibility and that sunsetting licensing will result in a loss of jobs. He described the demand for psychiatric technician services.


BILL:	Sunset Review of Psychiatric Technicians Licensure
TIME:	11:40:05 AM
MOVED:	Carroll M.
MOTION:	Continue the licensing of psychiatric technicians for five years. The motion failed on a 3-4 roll call vote.
SECONDED:
		VOTE
	Carroll M.	Yes
	Mitchell	No
	Morse	No
	Newell	Yes
	Schultheis	No
	Tochtrop	Yes
	Boyd	No
Not Final YES: 3 NO: 4 EXC: 0 ABS: 0 FINAL ACTION: FAIL


BILL:	Sunset Review of Psychiatric Technicians Licensure
TIME:	11:41:43 AM
MOVED:	Schultheis
MOTION:	Amend the draft bill (Attachment C) to change the five year sunset period to a three year sunset period. The motion failed on a 3-4 roll call vote.
SECONDED:
		VOTE
	Carroll M.	No
	Mitchell	Yes
	Morse	Yes
	Newell	No
	Schultheis	Yes
	Tochtrop	No
	Boyd	No
Not Final YES: 3 NO: 4 EXC: 0 ABS: 0 FINAL ACTION: FAIL


BILL:	Sunset Review of Psychiatric Technicians Licensure
TIME:	11:43:05 AM
MOVED:	Mitchell
MOTION:	Introduce the draft bill (Attachment C) as drafted. The motion passed on a 4-3 roll call vote.
SECONDED:
		VOTE
	Carroll M.	No
	Mitchell	Yes
	Morse	Yes
	Newell	No
	Schultheis	Yes
	Tochtrop	No
	Boyd	Yes
Final YES: 4 NO: 3 EXC: 0 ABS: 0 FINAL ACTION: PASS

11:44 AM

Senator Mitchell was designated as the prime Senator sponsor and Senator Schultheis was added as a cosponsor. Senator Boyd explained that the draft bill will be introduced and will be referred back to the Senate Health and Human Services Committee later in the session.

11:45 AM -- Sunset Review of Nurse Aide Certification Program

Brian Tobias, Department of Regulatory Agencies, discussed the Sunset Review of the Nurse Aide Certification Program (Attachment E) and the draft bill containing the recommendations of the department with regard to the program (Attachment F). He walked the committee through draft bill, and described DORA's recommendations. These recommendations include: Recommendation 1 - continue the regulation of certified nurse aides through July 1, 2020; Recommendation 2 - change the composition of the Nurse Aide Advisory Committee (advisory committee) to allow a professional nurse or practical nurse who supervises CNAs to serve on the committee and simplify the requirements for those members of the committee who represent the public; Recommendation 3 - change the make-up of the advisory committee and authorize members of the advisory committee to receive a per diem; Recommendation 4 - repeal the Medication Administration Advisory Committee; Recommendation 5 - clarify the ground for discipline regarding drug use and add failure to respond to the State Board of Nursing and the failure to report a criminal conviction as the grounds for discipline; Recommendation 6 - consolidate language regarding unauthorized nurse aide practice; Recommendation 7 - allow the Board of Nursing to require a CNA to undergo a physical or mental health examination by a licensed health care provider other than a physician; Recommendation 8 - repeal the requirement that proceedings related to complaints where formal charges were filed be subject to the open records law; Recommendation 9 - repeal the statutes specifying the scope of practice, education, and experience requirements for certification as a medication aide and require the Board of Nursing to promulgate rules in these areas; Recommendation 10 - authorize the board to require CNA training programs to include up to 25 percent more hours than the minimum federal requirements; Recommendation 11 - specify that the four months that a CNA may work without certification must be consecutive; Recommendation 12 - extend the waiting period for a CNA whose certification has been denied, revoked, or surrendered from one year to two years before the Board of Nursing may reinstate the certification; and Recommendation 13 - repeal the section in the "Nurse Practice Act" that prohibits a registered nurse from delegating the authority to select medications to another person if the person is not otherwise authorized to select medications.

11:58 AM

Senator Carroll discussed recommendation 8, which concerns a repeal of the requirement that proceedings related to complaints where formal charges are filed be subject to the open records law. She stated her belief that disciplinary actions should be open for public inspection. Mr. Tobias clarified that the documentation of the CNA's disciplinary action is still public and that the only thing that the recommendation changes is that the discussions related to the disciplinary action would be closed.

12:02 PM -- Susan Miller, Board of Nursing, came to the table to discuss recommendation 8. She stated that all disciplinary actions and formal charges filed are public, and the recommendation does not change that requirement. Ms. Miller explained that when the Board of Nursing meets to consider cases in which formal charges are filed, because the discussions are related to pending litigation and are protected by attorney client privilege, the board often goes into an executive session, which the public cannot attend. Therefore, the requirement that the meetings be open gives the public the impression that the meetings will be open when, in fact, they are often closed by executive session. Ms. Miller stated that the recommendation is not an attempt to make the process less transparent, but is aimed at improving administrative processes. Senator Carroll asked why the Board of Nursing needs to go into executive session when considering charges, and Ms. Miller explained why the board might enter into an executive session with its attorney. Senator Carroll and Ms. Miller dialogued on the need for executive sessions to protect attorney client privilege in situations in which formal charges against a nurse have been filed.

12:12 PM

Senator Tochtrop asked if the language regarding disciplinary proceedings for other professions is similar to that contained in recommendation 8 and Ms. Miller responded that the language in the draft bill was mirrored on language from the Dental Practice Act.

12:14 PM

Mr. Tobias continued his discussion of the recommendations contained in the sunset report. He discussed the recommendation that the Board of Nursing be authorized to require more training hours than those required by federal law. Mr. Tobias responded to questions from Senator Newell regarding recommendation 7, which allows the Board of Nursing to require a CNA to undergo a physical or mental examination by a licensed health care provider other than a physician. Mr. Tobias responded to questions from Senator Schultheis regarding the recommendation that the members of the advisory committee be permitted to receive a per diem of $50 for their services, noting that the program is funded through licensing fees which would be the source of funding for the per diem.

12:24 PM -- Joyce Humiston, Colorado Health Care Association, testified regarding her involvement with the advisory committee on medication aides. She testified that nobody is employing medication aides currently. She testified in support of recommendation 9, stating that the Board of Nursing should have the authority over the medication aide program. She stated that 26 states currently use medication aides, and that when Colorado passed its medication aide law, it was one of the most stringent in the country. She discussed the training requirements for CNAs employed by the nursing homes that she oversees, stating that the training hours required by her facility exceed federal standards. She discussed recommendation 11, which specifies that the four months that a CNA may work without certification must be consecutive. She requested that there be a waiver for the four-month certification period, noting that CNAs in rural areas often have difficulty complying with the requirement.

12:30 PM

Kristen Forrestal, Office of Legislative Legal Services, came to the table to address the draft bill (Attachment F). She explained that all sunset bills are required to have a safety clause, so that they take effect before program expires on July 1 of any year. She suggested that the committee could adopt an amendment to the sunset statute, section 24-34-104, C.R.S., which would permit future sunset bills to contain an effective date clause.


BILL:	Sunset Review of Nurse Aide Certification Program
TIME:	12:30:37 PM
MOVED:	Boyd
MOTION:	Amend the draft bill to add language to section 24-35-104.5, C.R.S., which would permit future sunset bills to contain an effective date clause rather than a safety clause. The motion passed without objection.
SECONDED:
		VOTE
	Carroll M.
	Mitchell
	Morse
	Newell
	Schultheis
	Tochtrop
	Boyd
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

12:33 PM

Ms. Forrestal explained amendment L.001 (Attachment G). The amendment changes language implementing recommendation 5 concerning drug abuse as a grounds for discipline of a CNA.


BILL:	Sunset Review of Nurse Aide Certification Program
TIME:	12:33:39 PM
MOVED:	Boyd
MOTION:	Adopt prepared amendment L.001 (Attachment G). The motion passed without objection.
SECONDED:
		VOTE
	Carroll M.
	Mitchell
	Morse
	Newell
	Schultheis
	Tochtrop
	Boyd
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

12:34 PM

Senator Boyd discussed a possible amendment to create a waiver to the four month period during which a CNA may work without being certified. She stated that she will work with interested parties and offer that amendment when the draft bill is introduced and returns to the Senate Health and Human Services Committee for consideration. Senator Schultheis discussed the number of training hours required for CNAs, and Senator Tochtrop noted that the language regarding training for CNAs is permissive.


BILL:	Sunset Review of Nurse Aide Certification Program
TIME:	12:38:29 PM
MOVED:	Boyd
MOTION:	Introduce the draft bill (Attachment F), as amended. The motion passed on a 4-0 roll call vote, with 3 members excused.
SECONDED:
		VOTE
	Carroll M.	Excused
	Mitchell	Excused
	Morse	Excused
	Newell	Yes
	Schultheis	Yes
	Tochtrop	Yes
	Boyd	Yes
Final YES: 4 NO: 0 EXC: 3 ABS: 0 FINAL ACTION: PASS

12:39 PM

Senator Boyd agreed to be the prime sponsor of the bill, and Senator Tochtrop and Senator Newell were added as cosponsors.

01:03 PM

Kristen Forrestal, Office of Legislative Legal Services, returned to the table to advise the committee that the sunset date of the program should be moved from July 1 to September 1 if the committee wished to allow for the use of an effective date clause rather than a safety clause in future sunset bills regarding the program.


BILL:	Sunset Review of Nurse Aide Certification Program
TIME:	01:04:59 PM
MOVED:	Boyd
MOTION:	Amend the draft bill (Attachment F), to change the future sunset date from July 1, 2020, to September 1, 2020. The motion passed without objection.
SECONDED:
		VOTE
	Carroll M.
	Mitchell
	Morse
	Newell
	Schultheis
	Tochtrop
	Boyd
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

12:40 PM -- Sunset Review of Med. Admin. by Unlicensed Persons

Bryan Jameson, Department of Regulatory Agencies, reviewed the DORA sunset report on the Administration of Medications by Unlicensed Persons (Attachment H) and the draft bill containing the recommendations of the report (Attachment I). He described the activities of qualified medication administration persons (QMAPs), who are individuals who do not have a medical license who help people take medication. He noted that the QMAP program is not a regulatory program, but rather a legal exemption and education function. He described the recommendations of DORA with regard to QMAPs. The first recommendation is that the QMAP program be continued, the second recommendation is that the QMAP program be removed from the sunset review calendar, the third recommendation is that employers document that all QMAPs who are currently within their employ have passed the QMAP competency evaluation at least every 5 years, and the fourth recommendation is that employers who utilize QMAP services conduct a drug-related criminal history record check of each unlicensed person in order to determine if the unlicensed person has a drug-related criminal history. Mr. Jameson responded to questions from Senator Newell regarding facility inspections. Mr. Jameson and Senator Tochtrop discussed the recommendation that the employer document training provided to QMAPs.

12:59 PM

Mr. Jameson continued his discussion of the DORA recommendations related to the QMAP program, describing recommendation number 4. He responded to questions from Senator Tochtrop regarding other professions that require fingerprint-based criminal history record checks.

01:01 PM -- Kristen Forrestal, Office of Legislative Legal Services, responded to questions regarding recommendation number 4.

01:02 PM -- Howard Roitman, Department of Public Health and Environment, offered to respond to committee questions.


BILL:	Sunset Review of Med. Admin. by Unlicensed Persons
TIME:	01:02:49 PM
MOVED:	Tochtrop
MOTION:	Introduce the draft bill (Attachment I) as drafted. The motion passed on a 4-0 roll call vote, with 3 members excused.
SECONDED:
		VOTE
	Carroll M.	Excused
	Mitchell	Excused
	Morse	Excused
	Newell	Yes
	Schultheis	Yes
	Tochtrop	Yes
	Boyd	Yes
Final YES: 4 NO: 0 EXC: 3 ABS: 0 FINAL ACTION: PASS

01:03 PM

Senator Boyd announced that Senator Carroll will be the prime sponsor of the bill and Senators Tochtrop and Senator Newell were added as cosponsors.

01:05 PM

The committee adjourned.