A4089

An Act concerning certified medication aides in nursing homes, amending various parts of the statutory law, and supplementing P.L.2020, c.112 (C.30:13 et al.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) Sections 10 through 17 of this act shall be known and may be cited as the “Certified Medication Aide in Nursing Homes Staffing Support Act.”

2. (New section) The Legislature finds and declares that:

a. Continued workforce competition and a shortage of qualified health care professionals has made it difficult for health care facilities licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) to recruit and retain direct care staff.

b. Staffing shortage are especially severe for the State’s licensed nursing homes, which continue to struggle to return to workforce levels in existence before the coronavirus disease 2019 (COVID-19) pandemic.

c. The workforce challenges faced by licensed nursing homes forces existing direct care staff to work additional hours in order to ensure that the facility meets statutorily required staffing ratios and the critical needs of its residents.

d. The State’s nursing home staffing shortages, and the burden that these staffing challenges place on existing staff, can be alleviated in part by permitting certified medication aides to administer medications to nursing home residents, as is permitted currently in 38 other states, and in State licensed assisted living residences, comprehensive personal care homes, dementia care homes, and assisted living programs.

e. It is therefore, altogether fitting and proper, that certified medication aides be permitted to administer medications in all nursing homes licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).

3. Section 2 of P.L.1997, c.100 (C.26:2H-83) is amended to read as follows:

2. a. The Department of Health shall not issue a nurse aide[or] , personal care assistant, or a medication aide certification to any applicant, except on a conditional basis as provided for in subsection d. of section 3 of P.L.1997, c.100 (C.26:2H-84), unless the Commissioner of Health first determines, consistent with the requirements of sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87), that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or in the State Bureau of Identification in the Division of State Police, which would disqualify that person from being certified. A nurse aide [or] , personal care assistant , or medication aide certified by the department prior to the effective date of P.L.2000, c.20 upon whom a criminal history record background check has not been conducted pursuant to sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87), shall be required to undergo that criminal history record background check as a condition of that individual's initial recertification following the effective date of P.L.2000, c.20.

In addition, a follow-up criminal history record background check of federal records shall be conducted at least once every two years as a condition of recertification for every certified nurse aide [and] , personal care assistant , and medication aide ; except that the commissioner, in lieu of conducting follow-up criminal history record background checks for purposes of recertification, may provide for an alternative means of determining whether a certified nurse aide [or] , personal care assistant , or medication aide has been convicted of a crime or disorderly persons offense which would disqualify that person from certification, including, but not limited to, a match of a person's Social Security number or other identifying information with records of criminal proceedings in this and other states. If the commissioner elects to implement this alternative means of determining whether a certified nurse aide [or] , personal care assistant , or medication aide has been convicted of a crime or disorderly persons offense which would disqualify that person from certification, the commissioner shall report to the Governor and the Legislature prior to its implementation on the projected costs and procedures to be followed with respect to its implementation and setting forth the rationale therefor.

A person shall be disqualified from certification if that person's criminal history record background check reveals a record of conviction of any of the following crimes and offenses:

(1) In New Jersey, any crime or disorderly persons offense:

(a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or

(b) against the family, children, or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq.; or

(d) involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10.

(2) In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in paragraph (1) of this subsection.

b. Notwithstanding the provisions of subsection a. of this section, no person shall be disqualified from certification on the basis of any conviction disclosed by a criminal history record background check performed pursuant to sections 2 through 6 and section 14 of P.L.1997, c.100 (C.26:2H-83 through 87 and C.53:1-20.9a) if the person has affirmatively demonstrated to the Commissioner of Health clear and convincing evidence of the person's rehabilitation. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors shall be considered:

(1) the nature and responsibility of the position which the convicted person would hold, has held or currently holds, as the case may be;

(2) the nature and seriousness of the offense;

(3) the circumstances under which the offense occurred;

(4) the date of the offense;

(5) the age of the person when the offense was committed;

(6) whether the offense was an isolated or repeated incident;

(7) any social conditions which may have contributed to the offense; and

(8) any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the person under their supervision.

c. If a person subject to the provisions of sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87) refuses to consent to, or cooperate in, the securing of a criminal history record background check, the commissioner shall, as applicable:

(1) not issue a nurse aide [or] , personal care assistant , or medication aide certification and shall notify the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of section 3 of P.L.1997, c.100 (C.26:2H-84) or the applicant's prospective employer if known, of that denial; or

(2) revoke the person's current nurse aide [or] , personal care assistant , or medication aide certification and notify the person, and the person's employer, if known, of that revocation.

(cf: P.L.2012, c.17, s.240)

4. Section 3 of P.L.1997, c.100 (C.26:2H-84) is amended to read as follows:

3. a. An applicant for certification, or a certified nurse aide [or] , personal care assistant , or medication aide who is required to undergo a criminal history record background check pursuant to section 2 of P.L.1997, c.100 (C.26:2H-83), shall submit to the Commissioner of Health that individual's name, address, and fingerprints taken on standard fingerprint cards by a State or municipal law enforcement agency. The commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required by sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87).

b. Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation or the Division of State Police, the commissioner shall immediately notify, in writing, the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of this section or the applicant's prospective employer if known, or a certified nurse aide [or] , personal care assistant , or medication aide who is required to undergo a criminal history record background check pursuant to section 2 of P.L.1997, c.100 (C.26:2H-83) and that person's employer, as applicable, of the person's qualification or disqualification for certification under sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87). If the person is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the notice to the person, but shall not be identified in the notice to the person's employer or prospective employer.

c. The person who is the subject of the background check shall have 30 days from the date of the written notice of disqualification to petition the commissioner for a hearing on the accuracy of the person's criminal history record information or to establish the person's rehabilitation under subsection b. of section 2 of P.L.1997, c.100 (C.26:2H-83). The commissioner shall notify the person's employer or prospective employer of the person's petition for a hearing within five days following the receipt of the petition from the person. Upon the issuance of a final decision upon a petition to the commissioner pursuant to this subsection, the commissioner shall notify the person and the person's employer or prospective employer as to whether the person remains disqualified from certification under sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87).

d. An applicant for certification may be issued conditional certification and may be employed as a nurse aide [or] , a personal care assistant , or a medication aide conditionally for a period not to exceed 60 days, pending completion of a criminal history record background check required under sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87) by the Division of State Police in the Department of Law and Public Safety based upon an examination of its own files in accordance with section 14 of P.L.1997, c.100 (C.53:1-20.9a), and for an additional period not to exceed 60 days pending completion of a criminal history record background check by federal authorities as arranged for by the Division of State Police pursuant to section 14 of P.L.1997, c.100 (C.53:1-20.9a), if the person submits to the commissioner a sworn statement attesting that the person has not been convicted of any crime or disorderly persons offense as described in section 2 of P.L.1997, c.100 (C.26:2H-83). A person who submits a false sworn statement shall be disqualified from certification as a nurse aide [or] , a personal care assistant, or a medication aide, as the case may be, and shall not have an opportunity to establish rehabilitation pursuant to subsection b. of section 2 of P.L.1997, c.100 (C.26:2H-83).

A conditionally employed person, or an employed person certified as a nurse aide [or] , a personal care assistant , or a medication aide, who disputes the accuracy of the criminal history record information and who files a petition requesting a hearing pursuant to subsection c. of this section may remain employed by that person's employer until the commissioner rules on the person's petition but, pending the commissioner's ruling, the employer shall not permit the person to have unsupervised contact with patients, residents, or clients, as the case may be, who are 60 years of age or older.

e. (1) A licensed health care facility or other entity that has received an application from or conditionally employs an applicant for nurse aide [or] , personal care assistant , or medication aide certification, or employs a certified nurse aide [or] , personal care assistant, or medication aide, and:

(a) receives notice from the Commissioner of Health that the applicant or certified nurse aide [or] , personal care assistant, or medication aide, as applicable, has been determined by the commissioner to be disqualified from certification as a nurse aide [or] , personal care assistant , or medication aide pursuant to sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87); or

(b) terminates its employment of a conditionally employed applicant for nurse aide [or] , personal care assistant , or medication aide certification or a certified nurse aide [or] , personal care assistant , or medication aide because the person was disqualified from employment at the health care facility or other entity on the basis of a conviction of a crime or disorderly persons offense as described in section 2 of P.L.1997, c.100 (C.26:2H-83) after commencing employment at the health care facility or other entity;

shall be immune from liability for disclosing that disqualification or termination in good faith to another licensed health care facility or other entity that is qualified by statute or regulation to employ the person as a nurse aide [or] , personal care assistant , or medication aide.

(2) A licensed health care facility or other entity which discloses information pursuant to paragraph (1) of this subsection shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the health care facility or other entity acted with actual malice toward the person who is the subject of the information.

f. (1) A licensed health care facility or other entity, upon receiving notice from the Commissioner of Health that a person employed by it as a nurse aide [or] , personal care assistant, or medication aide, including a conditionally employed person, has been convicted of a crime or disorderly persons offense as described in section 2 of P.L.1997, c.100 (C.26:2H-83) after commencing employment at the health care facility or other entity, shall:

(a) immediately terminate the person's employment as a nurse aide [or] , personal care assistant , or medication aide ; and

(b) report information about the termination to the Commissioner of Health in a manner prescribed by the commissioner, who shall thereupon deem the person to be disqualified from certification as a nurse aide [or] , personal care assistant, or medication aide, subject to the provisions of paragraph (3) of this subsection.

(2) A licensed health care facility or other entity shall be immune from liability for any actions taken in good faith pursuant to paragraph (1) of this subsection and shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the health care facility or other entity acted with actual malice toward the employee.

(3) The person terminated from employment pursuant to paragraph (1) of this subsection shall have 30 days from the date of the termination to petition the commissioner for a hearing on the accuracy of the information about the conviction reported to the commissioner or to establish why the person should not be terminated from employment, and disqualified from certification, as a nurse aide [or] , personal care assistant , or medication aide. The commissioner shall notify the person's employer of the person's petition for a hearing within five days following the receipt of the petition from the person. Upon the issuance of a final decision upon a petition to the commissioner pursuant to this paragraph, the commissioner shall notify the person and the person's employer as to whether:

(a) the person is to be reinstated in the person's employment as a nurse aide [or] , personal care assistant , or medication aide and retain the person's certification; or

(b) the person's termination from employment as a nurse aide [or] , personal care assistant , or medication aide stands and the person remains disqualified from certification.

g. The commissioner shall provide for a registry of all persons who have successfully completed all training and competency evaluation requirements for certification as a nurse aide [or] , personal care assistant , or medication aide and shall provide for the inclusion in the registry of information about the disqualification of any person from certification pursuant to sections 2 through 6 of P.L.1997, c.100 (C.26:2H-83 through 87); for which purposes, the commissioner may use an existing registry established pursuant to statute or regulation, subject to the requirements of federal law. The registry shall include the specific documented findings constituting the basis for that disqualification, except that the information shall indicate that the person was convicted of a crime or disorderly persons offense as described in section 2 of P.L.1997, c.100 (C.26:2H-83), but shall not identify the conviction or convictions which constitute the basis for the disqualification.

(cf: P.L.2012, c.17, s.241)

5. Section 4 of P.L. 1997, c.100 (C.26:2H-85) is amended to read as follows:

4. The Department of Health shall assume the cost of the criminal history record background check conducted on an applicant for nurse aide [or] , personal care assistant , or medication aide certification, or a certified nurse aide [or] , personal care assistant, or medication aide, as the case may be, pursuant to sections 2 through 6 and section 14 of P.L.1997, c.100 (C.26:2H-83 through 87 and C.53:1-20.9a).

(cf: P.L.2012, c.17, s.242)

6. Section 14 of P.L.1997, c.100 (C.53:1-20.9a) is amended to read as follows:

14. a. In accordance with the provisions of sections 2 through 6 and sections 7 through 13 of P.L.1997, c.100 (C.26:2H-83 through 87 and C.45:11-24.3 through 24.9) and P.L.2002, c.104 (C.45:1-28 et al.), the Division of State Police in the Department of Law and Public Safety shall conduct a criminal history record background check, including a name and fingerprint identification check, of:

(1) each applicant for nurse aide [or] , personal care assistant , or medication aide certification submitted to the Department of Health [and Senior Services] and of each applicant for homemaker-home health aide certification submitted to the New Jersey Board of Nursing in the Division of Consumer Affairs;

(2) each nurse aide [or] , personal care assistant , or medication aide certified by the Department of Health [and Senior Services] and each homemaker-home health aide certified by the New Jersey Board of Nursing, as required pursuant to P.L.1997, c.100 (C.26:2H-83 et al.); and

(3) each applicant for licensure or other authorization to engage in a health care profession who is required to undergo a criminal history record background check pursuant to P.L.2002, c.104 (C.45:1-28 et al.).

b. For the purpose of conducting a criminal history record background check pursuant to subsection a. of this section, the Division of State Police shall examine its own files and arrange for a similar examination by federal authorities. The division shall immediately forward the information obtained as a result of conducting the check to: the Commissioner of Health [and Senior Services], in the case of an applicant for nurse aide [or] , personal care assistant , or medication aide certification or a certified nurse aide [or] , personal care assistant , or medication aide; the New Jersey Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety, in the case of an applicant for homemaker-home health aide certification or a certified homemaker-home health aide; and the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, in the case of an applicant for licensure or other authorization to practice as a health care professional as defined in section 1 of P.L.2002, c.104 (C.45:1-28).

(cf: P.L.2002, c.104, s.5)

7. Section 1 of P.L.2002, c.104 (C.45:1-28) is amended to read as follows:

1. As used in this act:

"Applicant" means an applicant for the licensure or other authorization to engage in a health care profession.

"Board" means a professional and occupational licensing board within the Division of Consumer Affairs in the Department of Law and Public Safety.

"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.

"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.

"Health care professional" means a health care professional who is licensed or otherwise authorized, pursuant to Title 45 or Title 52 of the Revised Statutes, to practice a health care profession that is regulated by one of the following boards or by the Director of the Division of Consumer Affairs: the State Board of Medical Examiners, the New Jersey Board of Nursing, the New Jersey State Board of Dentistry, the New Jersey State Board of Optometrists, the New Jersey State Board of Pharmacy, the State Board of Chiropractic Examiners, the Acupuncture Examining Board, the State Board of Physical Therapy, the State Board of Respiratory Care, the Orthotics and Prosthetics Board of Examiners, the State Board of Psychological Examiners, the State Board of Social Work Examiners, the State Board of Veterinary Medical Examiners, the State Board of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians, the Audiology and Speech-Language Pathology Advisory Committee, the State Board of Marriage and Family Therapy Examiners, the Occupational Therapy Advisory Council, the Certified Psychoanalysts Advisory Committee or the State Board of Polysomnography.

Health care professional shall not include a nurse aide [or] , personal care assistant , or medication aide who is required to undergo a criminal history record background check pursuant to section 2 of P.L.1997, c.100 (C.26:2H-83) or a homemaker-home health aide who is required to undergo a criminal history record background check pursuant to section 7 of P.L.1997, c.100 (C.45:11-24.3).

"Licensee" means an individual who has been issued a license or other authorization to practice a health care profession.

(cf: P.L.2005, c.244, s.17)

8. Section 2 of P.L.2005, c.83 (C.26:2H-12.2b) is amended to read as follows:

2. a. A health care entity shall notify the division in writing if a health care professional who is employed by, under contract to render professional services to, or has privileges granted by, that health care entity, or who provides such services pursuant to an agreement with a health care services firm or staffing registry:

(1) for reasons relating to the health care professional's impairment, incompetency, or professional misconduct, which incompetency or professional misconduct relates adversely to patient care or safety: (a) has full or partial privileges summarily or temporarily revoked or suspended, or permanently reduced, suspended, or revoked; (b) has been removed from the list of eligible employees of a health services firm or staffing registry; (c) has been discharged from the staff; or (d) has had a contract to render professional services terminated or rescinded;

(2) has conditions or limitations placed on the exercise of clinical privileges or practice within the health care entity for reasons relating to the health care professional's impairment, incompetency, or professional misconduct or, which incompetency or professional misconduct relates adversely to patient care or safety, including, but not limited to, second opinion requirements, non-routine concurrent or retrospective review of admissions or care, non-routine supervision by one or more members of the staff, or the completion of remedial education or training;

(3) voluntarily resigns from the staff if: (a) the health care entity is reviewing the health care professional's patient care or reviewing whether, based upon its reasonable belief, the health care professional's conduct demonstrates an impairment or incompetence or is unprofessional, which incompetence or unprofessional conduct relates adversely to patient care or safety; or (b) the health care entity, through any member of the medical or administrative staff, has expressed an intention to do such a review;

(4) voluntarily relinquishes any partial privilege or authorization to perform a specific procedure if: (a) the health care entity is reviewing the health care professional's patient care or reviewing whether, based upon its reasonable belief, the health care professional's conduct demonstrates an impairment or incompetence or is unprofessional, which incompetence or unprofessional conduct relates adversely to patient care or safety; or (b) the health care entity, through any member of the medical or administrative staff, has expressed an intention to do such a review;

(5) while under, or subsequent to, a review by the health care entity of the health care professional's patient care or professional conduct is granted a leave of absence for reasons relating to a physical, mental, or emotional condition or drug or alcohol use which impairs the health care professional's ability to practice with reasonable skill and safety, except that no report is required for pregnancy-related leaves of absence or if the health care professional has sought assistance from a professional assistance or intervention program approved or designated by the division or a board to provide confidential oversight of the health care professional and is following the treatment regimen or monitoring as that program requires; or

(6) is a party to a medical malpractice liability suit, to which the health care entity is also a party, and in which there is a settlement, judgment, or arbitration award.

As used in this subsection, incompetence, professional misconduct, and unprofessional conduct shall not include personal conduct, such as tardiness, insubordination, or other similar behavior, which does not relate to patient care or safety.

b. A health care entity shall notify the division in writing if it is in possession of information that indicates that a health care professional has failed to comply with a request to seek assistance from a professional assistance or intervention program approved or designated by the division or a board to provide confidential oversight of the health care professional, or has failed to follow the treatment regimen or monitoring program required by that program to assure that the health care professional's physical, mental, or emotional condition or drug or alcohol use does not impair the health care professional's ability to practice with reasonable skill and safety.

c. A health care entity shall notify the division in writing if any health care professional who has been the subject of a report pursuant to this section, has had conditions or limitations on the exercise of clinical privileges or practice within the health care entity altered, or privileges restored, or has resumed exercising clinical privileges that had been voluntarily relinquished.

d. In the case of a health care professional who is providing services at a health care entity pursuant to an agreement with a health care services firm or staffing agency and is the subject of a notice pursuant to this section, the health care entity shall, when it submits a notice to the division concerning that health care professional, provide a copy of the notice to the health care services firm or staffing agency.

e. The form of notification shall be prescribed by the Commissioner of Health, in consultation with the Commissioner of Human Services in the case of [psychiatric facilities and] developmental centers, and shall contain such information as may be required by the division and shall be made within seven days of the date of the action, settlement, judgment, or award.

f. A health care entity which fails to provide such notice to the division or fails to cooperate with a request for information by the division, the board or the Medical Practitioner Review Panel established pursuant to section 8 of P.L.1989, c.300 (C.45:9-19.8) shall be subject to such penalties as the Department of Health may determine pursuant to sections 13 and 14 of P.L.1971, c.136 (C.26:2H-13 and 26:2H-14).

g. A health care entity, or any employee thereof, which provides information to the division, the board, the Medical Practitioner Review Panel, a health care services firm or staffing agency, or the Department of Health, in good faith and without malice, regarding a health care professional pursuant to the provisions of this section or section 3 of P.L.1989, c.300 (C.26:2H-12.2a), is not liable for civil damages in any cause of action arising out of the provision or reporting of the information.

h. A health care entity shall provide the health care professional who is the subject of a notice pursuant to paragraphs (1), (2), (4), and (5) of subsection a. of this section and subsection c. of this section with a copy of the notice provided to the division, when the health care entity submits the notice to the division.

i. For the purposes of this section, section 3 of P.L.1989, c.300 (C.26:2H-12.2a) and section 15 of P.L.2005, c.83 (C.26:2H-12.2c):

"Board" means a professional and occupational licensing board within the Division of Consumer Affairs in the Department of Law and Public Safety which licenses or otherwise authorizes a health care professional to practice a health care profession.

"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.

"Health care entity" means a health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), a health maintenance organization authorized to operate pursuant to P.L.1973, c.337 (C.26:2J-1 et seq.), a carrier which offers a managed care plan regulated pursuant to P.L.1997, c.192 (C.26:2S-1 et seq.), a State or county psychiatric hospital, a State developmental center, a staffing registry, and a home care services agency as defined in section 1 of P.L.1947, c.262 (C.45:11-23).

"Health care professional" means a person licensed or otherwise authorized pursuant to Title 45 or Title 52 of the Revised Statutes to practice a health care profession that is regulated by the Director of the Division of Consumer Affairs or by one of the following boards: the State Board of Medical Examiners, the New Jersey Board of Nursing, the New Jersey State Board of Dentistry, the New Jersey State Board of Optometrists, the New Jersey State Board of Pharmacy, the State Board of Chiropractic Examiners, the Acupuncture Examining Board, the State Board of Physical Therapy, the State Board of Respiratory Care, the Orthotics and Prosthetics Board of Examiners, the State Board of Psychological Examiners, the State Board of Social Work Examiners, the State Board of Veterinary Medical Examiners, the State Board of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians, the Audiology and Speech-Language Pathology Advisory Committee, the State Board of Marriage and Family Therapy Examiners, the Occupational Therapy Advisory Council and the Certified Psychoanalysts Advisory Committee. "Health care professional" also includes a nurse aide [and] , a personal care assistant , and a medication aide certified by the Department of Health.

(cf: P.L.2012, c.17, s.179)

9. Section 2 of P.L.2020, c.112 (C.26:2H-12.96) is amended to read as follows:

2. A long-term care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) may employ certified homemaker-home health aides ,and medication aides certified by the Department of Health, to work as certified nurse aides, provided that the homemaker-home health aide or the certified medication aide is enrolled in a qualified certified nurse aide program and is working toward certification as a certified nurse aide.

(cf: P.L.2020, c.112, s.2)

10. (New section) A certified medication aide shall be authorized to administer medications, as delegated by and under the authority of a registered nurse, to residents of assisted living facilities, comprehensive personal care homes, dementia care homes, assisted living programs, and nursing homes licensed pursuant to P.L. P.L.1971, c.136 (C.26:2H-1 et seq.), provided the certified medication aide is also:

a. certified as a nurse aide by the Department of Health for employment in a long-term care facility, as promulgated under N.J.A.C. 8:39-43.1 through N.J.A.C. 8:39-43.9;

b. certified as a homemaker home health aide by the Board of Nursing in the Division of Consumer Affairs of the Department of Law and Public Safety, pursuant to P.L.1947, c.262 (C.45:11-23 et seq.), and who also meets the requirements for employment as a certified nurse aide in a long-term care facility, as provided in section 2 of P.L.2020, c.112 (C.26:2H-12.96); or

c. certified as a personal care assistant by the Department of Health pursuant to N.J.A.C. 8:36-9.1.

11. (New section) An individual applying to the Department of Health for certification as a medication aide in a nursing home, and who has satisfied the conditions provided in section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), must also:

a. successfully complete a department approved training course on medication administration in a long term care setting; and

b. within six months of completing the medication administration training course, attain a passing score on a standardized examination, as designated by the department, regarding the administration of medication for personal care assistants.

12. (New section) a. Initial certification for a medication aide shall be valid for a period of two years from the date of issue by the Department of Health.

b. Once every two years, on a schedule to be determined by the department, a medication aide shall apply to the department for renewal of the medication aide’s current certification.

c. Candidates for renewal of an existing medication aide certification are required to successfully complete, and submit documentation for, a minimum of 10 hours of continuing education courses, seminars, or in-service training taken over the current certification period.

d. The continuing education requirement shall include five hours on the fundamental principles of medication administration and the skills and knowledge necessary for the task of medication administration, and five hours of continuing education and in-service training on current topics in medication use relevant to the elderly.

e. The continuing education requirement, established pursuant to this section, shall be in addition to any continuing education requirements for individuals who are also certified by the Department of Health as a personal care assistant, as provided in N.J.A.C. 8:36-9.1(e), or who are also certified by the Board of Nursing under the Division of Consumer Affairs in the Department of Law and Public Safety, as provided in section 2 of P.L.1947, c.262 (C.45:11-24).

e. The facility employing the certified medication aide shall maintain records sufficient to verify the continuing education record of all current and former staff employed as a certified medication aide for at least one certification renewal period.

13. (New section) a. An individual whose name has been removed from the New Jersey medication aide registry for a period of more than one year shall be required to retrain and retest, in accordance with the rules for medication aide certification in effect at the time of retraining and retesting, in order to be reentered on the registry.

b. Registry confirmation of a medication aide certification shall not be sufficient to satisfy the requirement for reference checks identified at N.J.A.C. 8:43I.

14. a. (New section) A certificate issued to a medication aide in accordance with this section shall be suspended, denied, or revoked under the following circumstances:

(1) substantiated findings that the medication aide has abused or neglected, or has misappropriated the property of a resident in an assisted living facility, comprehensive personal care home, dementia care home, assisted living program, or nursing home;

(2) revocation of the medication aide’s certification as a nurse aide, a homemaker-home health aide, or a personal care assistant as a result of the criminal history background check pursuant to section 2 of P.L.1997, c.100 (C.26:2H-83);

(3) the sale, purchase, or alteration of a certificate; use of fraudulent means to secure the certificate, including filing false information on the application for certification; or forgery, imposture, dishonesty, or cheating on the standardized medication aide examination required by the Department of Health as part of the certification process; or

(4) documented and verified incompetence or negligence in the performance of duties which fall within the scope of practice of the certified medication aide, as determined by the department.

b. (1) If the department proposes to suspend, deny, or revoke the certification of a medication aide in an assisted living residence, comprehensive personal care home, dementia care home, assisted living program, or nursing home, the aggrieved person may request a hearing which shall be conducted pursuant to the procedure specified in section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(2) Prior to entering the finding into the certified medication aide abuse registry, the department shall provide notice to the certified medication aide, which notice shall identify the intended action, the factual basis and source of the finding, and the individual's right to a hearing under the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) and the Uniform Administrative Procedure Rules at N.J.A.C. 1:1.

(3). The notice provided in paragraph (2) of this subsection shall be transmitted to the individual so as to provide at least 30 days for the individual to request an administrative hearing prior to placement on the certified medication aide abuse registry.

(4) If a hearing is requested, it shall be conducted by the Office of Administrative Law or by a Department of Health hearing officer, in accordance with the procedures established by the Administrative Procedure Act, P.L.1968, c.410 (C.52:14B-1 et seq.) and the Uniform Administrative Procedure Rules pursuant to N.J.A.C. 1:1.

(5) No further right to an administrative hearing shall be offered to a certified medication aide who has been given the opportunity for a hearing before a State or local administrative agency, or in a court of law, for which the certified medication aide received adequate notice and an opportunity to testify and to confront witnesses, and where there was an impartial hearing officer who issued a written decision verifying the findings of abuse, neglect, or misappropriation of resident property, or negligence or incompetence on the part of the certified medication aide.

(6) Following a finding of abuse, neglect, or misappropriation of property on the part of a certified medication aide, the aide shall have the right to enter a statement to be included in the abuse registry contesting such finding.

(7) An order of suspension, denial, or revocation of a medication aide’s certification may contain such provisions regarding reinstatement of the certification as the Department of Health shall recommend; in the absence of any provisions regarding reinstatement, the action shall be deemed to be permanent.

15. (New section) The Commissioner of Human Services shall apply for any federal Medicaid waivers or State plan amendments as may be necessary to implement the provisions of this act and ensure continued federal reimbursement for State expenditures for nursing home services under the federal Medicaid program.

16. (New section) Notwithstanding any provision of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to the contrary, the Commissioner of Health, the Commissioner of Law and Public Safety, and the Commissioner of Human Services are authorized to adopt immediately upon filing with the Office of Administrative Law rules and regulations necessary to implement this act. The rules and regulations adopted pursuant to this section shall be effective for a period not to exceed 18 months following the date of filing and may thereafter be amended, adopted, or readopted by the director in accordance with the requirements of P.L.1968, c.410 (C.52:14B-1 et seq.).

17. This act shall take effect on the first day of the sixth month next following the date of enactment.

STATEMENT

The bill authorizes medication aides, who are certified by the Department of Health (DOH), to administer medications, as delegated by and under the authority of a registered professional nurse, in State licensed nursing homes. Current law and regulations authorize certified medication aides to practice in assisted living facilities, comprehensive personal care homes, dementia care homes, and assisted living programs.

Under the bill, an individual seeking certification from the DOH as a medication aide, must first be a nurse aide certified by the DOH for employment in a long-term care facility, as provided under regulations found at N.J.A.C. 8:39-43.1 through N.J.A.C. 8:39-43.9; a homemaker home health aide certified by the Board of Nursing in the Division of Consumer Affairs, who also meets statutory requirements for employment as a certified nurse aide in a long-term care facility; or a personal care assistant certified by the DOH.

Individuals seeking certification as a medication aide in a nursing home will also be required to successfully complete a DOH approved training course on medication administration in a long term care setting, and within six months of completing the training course, attain a passing score on a DOH designated standardized examination on the administration of medication for personal care assistants.

DOH certification for medication aides will be valid for two years, under the bill. Medication aides seeking to renew their certification must complete at least 10 hours of continuing education courses, seminars, or in-service training.

The bill provides that the continuing education requirement will be in addition to any continuing education requirements for certified personal care assistants or certified nurse aides, as provided by the DOH, or for certified homemaker home health aides, as required by the Board of Nursing. The facility employing the certified medication aide, additionally, will maintain the continuing education records for all current and former certified medication aides for at least a two year period.

The bill provides for the suspension, denial, or revocation of a medication aide’s certification under circumstances outlined in the bill. The bill additionally establishes a process by which the DOH will notify the certified medication aide of any pending disciplinary action, and a process by which the medication aide may request an administrative hearing to appeal the department’s determination.

The bill amends section 2 of P.L.1997, c.100 (C.26:2H-83), which requires the DOH to conduct criminal history record background checks on applicants for initial and renewal certification as nurse aides and personal care assistants, to now require background checks for applicants for initial and renewal certification as medication aides. The amendments additionally establish certain crimes for which a medication aide will be disqualified from certification.

The bill further amends section 3 of P.L.1997, c.100 (C.26:2H-84) to include provisions for establishing a process by which a medication aide may be temporarily employed by a facility while the criminal history record background check on the medication aide is pending. The bill, finally, amends this statute to require the DOH to establish a registry of certified medication aides, in addition to the existing registries for DOH certified nurse aides and personal care assistants.

It is the intent of the sponsor to enhance staffing support in licensed nursing homes by authorizing certified medication aides to

administer medications, under the direction of a registered practical nurse, to residents.