HSB 612 (LSB 5594YC (3) 83)

HOUSE FILE _____

BY  (PROPOSED COMMITTEE ON HUMAN RESOURCES BILL BY CHAIRPERSON SMITH)

A BILL FOR

An Act relating to health care facilities and programs, including hospital inspector requirements, the hospital licensing board, and dependent adult abuse.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 135B.9, Code 2009, is amended to read as follows:
   135B.9  Inspections and qualifications for hospital inspectors —— protection and advocacy agency investigations.
   1.  The department shall make or cause to be made inspections as it deems necessary in order to determine compliance with applicable rules.  Hospital inspectors shall meet the following qualifications:
   a.  Upon hire, have been employed in a hospital within the last two years and have current knowledge of hospital operations.
   b.  Be free of conflicts of interest. A hospital inspector shall not participate in an inspection or complaint investigation of a hospital in which the inspector or a member of the inspector’s immediate family works or has worked within the last five years. For purposes of this paragraph, “immediate family member” means a spouse; natural or adoptive parent, child, or sibling; or stepparent, stepchild, or stepsibling.
   c.  Complete a yearly conflict of interest disclosure statement. The department shall submit an annual conflict of interest disclosure report compiling such conflict of interest information to the hospital licensing board.
   d.  Annually, complete a minimum of ten hours of continuing education pertaining to hospital operations including but not limited to quality and process improvement standards, trauma system standards, and regulatory requirements.
   2.  In the state resource centers and state mental health institutes operated by the department of human services, the designated protection and advocacy agency as provided in section 135C.2, subsection 4, shall have the authority to investigate all complaints of abuse and neglect of persons with developmental disabilities or mental illnesses if the complaints are reported to the protection and advocacy agency or if there is probable cause to believe that the abuse has occurred. Such authority shall include the examination of all records pertaining to the care provided to the residents and contact or interview with any resident, employee, or any other person who might have knowledge about the operation of the institution.
    Sec. 2.  Section 135B.11, Code Supplement 2009, is amended to read as follows:
   135B.11  Functions of hospital licensing board —— compensation.
   1.  The hospital licensing board shall have the following responsibilities and duties:
   a.  To consult with and advise the department in matters of policy affecting administration of this chapter the licensure of hospitals in this state, and in the development of rules and standards provided for under this chapter.  This advisory function shall be construed broadly and shall not be limited to licensure issues pursuant to this chapter.
   b.  To review and approve rules and standards authorized under this chapter prior to their approval by the state board of health and adoption by the department.
   c.  To make recommendations on practice issues and policy.
   d.  To review and approve proposed educational programs provided with licensure fee funds. The educational programs provided may cover any subject matter relating to the licensure and operation of hospitals and is not limited to licensure issues pursuant to this chapter.
   2.  Each member of the board may also be eligible to receive compensation as provided in section 7E.6.
    Sec. 3.  Section 235E.1, subsection 5, paragraph b, Code 2009, is amended by adding the following new subparagraphs:
   NEW SUBPARAGRAPH.  (4)  Circumstances in which a caretaker makes an error in professional judgment or medical care in the care of a dependent adult regardless of the outcome.
   NEW SUBPARAGRAPH.  (5)  Circumstances in which a caretaker who is providing security at a facility who, in the process of providing protection to the patients and staff at the facility, injures a dependent adult.
   NEW SUBPARAGRAPH.  (6)  Circumstances in which a caretaker responds to another caretaker’s request for assistance in an emergency situation and a dependent adult is injured as a result of the emergency response.
    Sec. 4.  Section 235E.1, Code 2009, is amended by adding the following new subsections:
   NEW SUBSECTION.  6A.  “Gross negligence” means an act or omission by a caretaker where the caretaker does all of the following:
   a.  Has knowledge of the peril to be apprehended.
   b.  Has knowledge that injury is a probable, as opposed to a possible, result of the peril.
   c.  Consciously fails to avoid the peril.
   NEW SUBSECTION.  12.  “Willful misconduct” means an intentional act committed with disregard for a known or obvious risk with the expectation that harm will follow.
    Sec. 5.  Section 235E.2, subsection 2, Code Supplement 2009, is amended to read as follows:
   2.  a.  A staff member or employee of a facility or program who, in the course of employment, directly examines, attends, counsels, or treats a dependent adult in a facility or program and reasonably believes the dependent adult has suffered dependent adult abuse, shall report the suspected dependent adult abuse to the department.
   b.  A staff member or employee of a facility or program who, in the course of employment, provides indirect treatment or services to a dependent adult in a facility or program and who reasonably believes the dependent adult has suffered dependent adult abuse may report the dependent adult abuse to the department. For purposes of this paragraph, “indirect treatment or services” includes treatment or services provided without person-to-person contact such as those provided by administrative, dietary, housekeeping, and maintenance employees. A staff member or employee of a facility or program who provides indirect treatment or services shall, during an orientation program, receive training regarding the prevention, intervention, and detection of dependent adult abuse and neglect and related reporting requirements.
   c.  Persons with de minimus contact with dependent adults in a facility or program shall not be considered staff members or employees for purposes of this section. Persons with de minimus contact include those persons present in a facility or program for a limited purpose, those persons who are not present in a facility or program on a regular basis, and those persons who do not provide any treatment or services to the dependent adults in the facility or program. Such persons include but are not limited to part-time volunteers, building contractors, and repair workers.
    Sec. 6.  Section 235E.2, Code Supplement 2009, is amended by adding the following new subsection:
   NEW SUBSECTION.  14.  When a caretaker in a facility or program is accused of dependent adult abuse, the department has reason to believe that dependent adult abuse has occurred, and the caretaker wishes to appeal this determination, all of the following shall occur before the caretaker’s name is listed on the dependent adult abuse registry:
   a.  The caretaker shall have the right to an emergency adjudicative proceeding pursuant to section 17A.18A before an administrative law judge to determine whether the caretaker shall be allowed to continue employment in the facility or program or whether the caretaker may be placed on administrative leave while waiting for a contested case hearing pursuant to section 17A.12. The emergency adjudicative proceeding shall take place within five business days of the department’s allegation that dependent adult abuse occurred.
   b.  The administrative law judge shall determine if the caretaker shall be allowed to continue employment in the facility or program and in what capacity. If the administrative law judge determines that the caretaker shall not continue employment, the caretaker may be placed on administrative leave.
   c.  A contested case hearing on whether dependent adult abuse occurred shall take place within forty-five days of the informal hearing in the manner provided by section 17A.12.
EXPLANATION
   This bill provides for certain requirements for health care facilities and programs including hospitals. The bill establishes explicit qualifications for persons who inspect hospitals. Inspectors must have been employed in a hospital, be free of conflicts of interest, and obtain annual continuing education.
   The bill also revises the role of the hospital licensing board by enumerating the specific duties of the board, including advising the department of inspections and appeals concerning hospital licensure, approving legislative proposals, making recommendations on practice issues and policy, and reviewing and approving educational programs provided through licensure fee funds.
   The bill provides certain exclusions from the definition of dependent adult abuse in a facility or program under Code chapter 235E, including circumstances in which a caretaker makes an error in professional judgment or medical care in the care of a dependent adult regardless of the outcome, circumstances in which a caretaker who is providing security at a facility who, in the process of providing protection to the patients and staff at the facility, injures a dependent adult, and circumstances in which a caretaker responds to another caretaker’s request for assistance in an emergency situation and a dependent adult is injured as a result of the emergency response. Under Code chapter 235E, a facility is defined as a health care facility as defined in Code section 135C.1 or a hospital as defined in Code section 135B.1, and a program is defined as an elder group home as defined in Code section 231B.1, an assisted living program certified under Code section 231C.3, or an adult day services program as defined in Code section 231D.1.
   The bill defines “gross negligence” and “willful misconduct” for purposes of the definition of dependent adult abuse in Code chapter 235E. “Gross negligence” is defined as an act or omission by a caretaker where the caretaker has knowledge of the peril to be apprehended, has knowledge that injury is a probable, as opposed to a possible, result of the peril, and consciously fails to avoid the peril. “Willful misconduct” is defined as an intentional act committed with disregard for a known or obvious risk with the expectation that harm will follow.
   The bill provides that a staff member or employee of a facility or program who, in the course of employment, provides indirect treatment or services to a dependent adult in a facility or program and who reasonably believes the dependent adult has suffered dependent adult abuse may report the dependent adult abuse to the department. Indirect treatment or services includes treatment or services provided without person-to-person contact such as those provided by administrative, dietary, housekeeping, and maintenance employees. The bill requires a staff member or employee of a facility or program who provides indirect treatment or services to receive training regarding the prevention, intervention, and detection of dependent adult abuse and neglect and related reporting requirements. Persons with de minimus patient contact shall not be considered staff members or employees for purposes of the bill.
   The bill provides an administrative review process for a caretaker in a facility or program who is accused of dependent adult abuse. The caretaker shall have the right to an emergency adjudicative proceeding pursuant to Code section 17A.18A before an administrative law judge to determine if the caretaker shall be allowed to continue employment in the facility or program or whether the caretaker may be placed on administrative leave while waiting for a contested case hearing pursuant to Code section 17A.12 and an informal preliminary hearing shall take place within five business days of the department’s allegation that dependent adult abuse occurred. An administrative law judge shall determine if the caretaker shall be allowed to continue employment in the facility or program and in what capacity and if not, whether the caretaker may be placed on administrative leave. A contested case hearing on whether dependent adult abuse occurred is required to be held within 45 days of the emergency adjudicative proceeding in the manner provided by Code section 17A.12.