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F I S C A L I M P A C T R E P O R T

SPONSOR HLHRC

DATE TYPED 3/13/05 HB CS626/aHLHRCS/aHJC

SHORT TITLE Employee Abuse Registry Act

SB

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

None

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the Attorney General (AGO)

Department of Health (DOH)

Aging and Long-Term Services Department (ALTSD)

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee Amendment clarifies a provider is not civilly liable for the hir-

ing, deciding not to hire or terminating of an individual in good faith pursuant to the Employee

Abuse Registry Act.

Synopsis of Substitute Bill

The House Labor and Human Resources Committee Substitute for HB 626, as amend by

HLHRC, enacts the “Employee Abuse Registry Act” (EARA) requiring the DOH to maintain an

electronic database registry of direct care providers in long-term care facilities or community

based waiver services who have substantiated abuse, neglect, or exploitation charges as deter-

mined by DOH and/or ALTSD. The substitute bill covers employees and contractors who pro-

vide financial or physical care to the disabled or elderly, but does not include licensed health care

professionals practicing within the scope of their license or certified nursing assistants. The sub-

stitute bill provides for administrative due process hearings, appeal rights, procedures for re-

moval from the registry after three years, and civil monetary penalties of up to $5,000 per in-

stance on providers who fails to comply with the terms of the EARA. The DOH and ALTSD

must adopt rules by January 1, 2006, which is necessary to carry out the provisions of the Act.

House Bill CS626/aHLHRCS/aHJC-- Page 2

Significant Issues

The substitute bill directs DOH to review reports of abuse, neglect and exploitation against em-

ployees of providers that DOH licenses and investigate those reports to determine whether there

is a reasonable basis to believe that abuse, neglect or exploitation occurred. If DOH determines

that abuse, neglect, or exploitation occurred, it shall notify the provider and the employee. Simi-

lar obligations are placed on ALTSD for employees and providers under its jurisdiction, and re-

quire Adult Protective Services (APS) to report substantiated finding of abuse, neglect or exploi-

tation to DOH.

The substitute bill establishes a notice and hearing process that DOH and ALTSD must follow

before placing a person’s name on the registry. The departments will consider the “severity” of

the alleged abuse, neglect and exploitation, and if a hearing is requested, the department that

made the determination shall conduct the hearing. If an employee is aggrieved by the final deci-

sion, the employee would have a right to judicial review.

Licensed health facilities and providers of home or community-based services would be required

to check the registry before making hiring or contracting decisions and keep record of the inquir-

ies to the registry. Providers are offered some immunity if they report abuse, or fail to hire an

employee after consulting the registry. After three years, an employee may petition to have his or

her name removed from the registry.

The AGO reports the substitute bill clarifies the roles of the ALTSD and the DOH with regard to

investigations and hearings. The original bill was unclear with regard to the division of responsi-

bilities between those agencies.

This is a Governor’s Priority Bill that directly impacts the Zero Tolerance for Elder Abuse prior-

ity.

PERFORMANCE IMPLICATIONS

The AGO notes ALTSD currently has authority to investigate allegations of abuse against adults.

FISCAL IMPLICATIONS

Staff time and resources will be affected regarding rules adoption, fair hearing process, investi-

gating reports of abuse, neglect and exploitation, sanctions, and registry maintenance for both the

DOH and ALTSD.

ALTSD anticipates it will need to conduct three to four hearings per year at a cost of about

$3,000 to $5,000 per hearing, including judicial appeals.

DOH reports current resources are sufficient to develop the registry and conduct hearings. The

DOH currently administers the Nurse Aide Registry and could use that structure to help imple-

ment a new registry. The maintenance of the registry will require one to two FTE that could re-

ceive Medicaid matching funds. The state mach funds and cost of fair hearings would be ab-

sorbed out of the current budget.

House Bill CS626/aHLHRCS/aHJC-- Page 3

ADMINISTRATIVE IMPLICATIONS

The DOH report the use of Nurse Aide Registry regulations can serve as guidelines to potentially

reduce implementation costs.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates SJC Substitute for SB 590

TECHNICAL ISSUES

Trainings for providers will need to be conducted so employers are fully informed of their duties

and responsibilities under the substitute bill. Employers should also be required to provide train-

ing for their employees.

Consideration should be given to ensure that language or social disadvantage is not a barrier in

reaching effective resolution.

OTHER SUBSTANTIVE ISSUES

The substitute bill would make the definitions of abuse, neglect and exploitation the same as the

APS definitions. It would also assure that the employee fair hearing process and judicial review

are made available by both agencies.

ALTSD report under present law and regulations, there is no comprehensive registry of persons

who have had substantiated allegations of abuse, neglect or exploitation. Unless the allegations

were serious enough to warrant action by the criminal authorities, it has been fairly easy for per-

sons to move from job to job.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The ALTSD will continue to investigate abuse and neglect under the Adult Protective Services

Act.

AHO/lg