House Bill 4445

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    Florida House of Representatives - 1998                HB 4445

        By Representative Brooks






  1                      A bill to be entitled

  2         An act relating to certified nursing

  3         assistants; creating part XV of chapter 468,

  4         F.S.; providing a short title; providing

  5         definitions; providing duties and powers of the

  6         Department of Health in regulating the practice

  7         of certified nursing assistants; providing

  8         requirements for a state registry of certified

  9         nursing assistants; providing requirements for

10         obtaining certification as a certified nursing

11         assistant; authorizing the department to deny,

12         suspend, or revoke a person's certification

13         upon certain findings or reports of abuse,

14         neglect, or exploitation; authorizing the

15         department to exempt an applicant or

16         certificateholder from disqualification of

17         certification; specifying certain acts that

18         constitute grounds for disciplinary sanctions;

19         providing penalties; requiring that the

20         department maintain a registry of certified

21         nursing assistants; providing for renewal of

22         certification; exempting an employer from

23         liability for terminating a certified nursing

24         assistant under certain circumstances;

25         authorizing the department to contract for

26         examination services; providing penalties;

27         providing rulemaking authority; amending s.

28         400.211, F.S.; deleting obsolete provisions

29         with respect to the regulation of certified

30         nursing assistants by the Department of

31         Business and Professional Regulation; providing

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  1         for certain federal requirements to apply to

  2         specified nursing home facilities under certain

  3         circumstances; amending ss. 20.43, 400.4255,

  4         400.462, 400.506, 455.667, F.S., relating to

  5         the Department of Health, the use of licensed

  6         personnel in assisted living facilities, the

  7         regulation of home health agencies, nurse

  8         registries, and the ownership and control of

  9         patient records; conforming cross-references to

10         changes made by the act; providing for the

11         continued validity of certifications issued

12         before the effective date of the act; providing

13         an effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

16

17         Section 1.  Part XV of chapter 468, Florida Statutes,

18  consisting of sections 468.820, 468.821, 468.822, 468.823,

19  468.824, 468.825, 468.826, 468.827, and 468.828, Florida

20  Statutes, is created to read:

21         468.820  Short title.--This part may be cited as the

22  "Certified Nursing Assistant Practice Act."

23         468.821  Definitions.--As used in this part, the term:

24         (1)  "Approved training program" means a course of

25  training conducted by a public or private educational center

26  licensed by the Department of Education to implement the basic

27  curriculum for certified nursing assistants which is approved

28  by the Department of Education.

29         (2)  "Certified nursing assistant" means a person who

30  meets the qualifications specified in this part and who is

31  certified by the department as a certified nursing assistant.

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  1         (3)  "Department" means the Department of Health.

  2         (4)  "Registry" means the listing of certified nursing

  3  assistants maintained by the department.

  4         468.822  Duties and powers of the department.--The

  5  department shall regulate the practice of certified nursing

  6  assistants in this state. The department shall maintain, or

  7  contract with or approve another entity to maintain, a state

  8  registry of certified nursing assistants. The registry must

  9  consist of a database including the name of each certified

10  nursing assistant in this state who holds active

11  certification, the effective date of certification, and an

12  indication whether the certified nursing assistant was

13  reimbursed for the cost of training and testing. The registry

14  shall be accessible to individuals, employers, and other state

15  agencies. The department shall establish testing procedures

16  for use in certifying nursing assistants and shall adopt rules

17  regulating the practice of certified nursing assistants to

18  ensure public health, safety, and welfare.

19         468.823  Certified nursing assistants; certification

20  requirement.--

21         (1)  Except as provided in subsection (2), a person may

22  not practice as a certified nursing assistant unless the

23  person is certified by the department under this part. A

24  person who is certified under this part may use the title

25  "Certified Nursing Assistant" and the abbreviation "C.N.A."

26         (2)  A registered nurse or a practical nurse licensed

27  under chapter 464, or an applicant for licensure as a

28  registered nurse or a practical nurse who is permitted to

29  practice nursing in accordance with rules adopted by the Board

30  of Nursing, may practice as a certified nursing assistant and

31

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  1  use the title "Certified Nursing Assistant" and the

  2  abbreviation "C.N.A."

  3         (3)  The department shall issue a certificate to

  4  practice as a certified nursing assistant to any person who

  5  demonstrates an ability to read and write the English language

  6  and meets the requirements of level 1 screening as provided in

  7  s. 435.03, including a search for any report of abuse,

  8  neglect, or exploitation of an adult. A person who has not

  9  maintained continuous residency within the state for the 5

10  years immediately preceding the date of application must

11  comply with the requirements for level 2 screening as provided

12  in s. 435.04 and may be granted conditional certification for

13  up to 180 days pending the receipt of written findings

14  evidencing completion of level 2 screening. Level 2 screening

15  is not required if an applicant attests in writing, under

16  penalty of perjury, that he or she meets the residency

17  requirement. An applicant must supply any missing criminal

18  history information or other necessary information to the

19  department within 30 days after the department requests the

20  information or be subject to automatic disqualification of

21  eligibility for certification. In addition, an applicant must

22  meet one of the following requirements:

23         (a)  Has successfully completed an approved training

24  program and achieved a minimum score, established by rule of

25  the department, on the Florida Nursing Assistant Competency

26  Evaluation, which consists of a written portion and skills

27  demonstration portion approved by the department and

28  administered at a site and by personnel approved by the

29  department.

30         (b)  Has achieved a minimum score, established by rule

31  of the department, on the Florida Nursing Assistant Competency

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  1  Evaluation, which consists of a written portion and skills

  2  demonstration portion, approved by the department and

  3  administered at a site and by personnel approved by the

  4  department and:

  5         1.  Has a high school diploma, or its equivalent; or

  6         2.  Is at least 18 years of age.

  7         (c)  Is currently certified in another state; is listed

  8  on that state's certified nursing assistant registry; has not

  9  been found to have committed abuse, neglect, or exploitation

10  in that state; and has successfully completed a national

11  nursing assistant evaluation in order to receive certification

12  in that state.

13         (4)  If an applicant fails to pass the Florida Nursing

14  Assistant Competency Evaluation in three attempts, the

15  applicant is not eligible for reexamination unless the

16  applicant completes an approved training program.

17         (5)  An oral examination shall be administered as a

18  substitute for the written portion of the examination upon

19  request.

20         468.824  Denial, suspension, or revocation of

21  certification; certified nursing assistant registry.--

22         (1)  The department may deny, suspend, or revoke the

23  certification of any certified nursing assistant, based upon

24  written notification from a court of competent jurisdiction,

25  law enforcement agency, or administrative agency of any

26  finding of guilt of, regardless of adjudication, or a plea of

27  nolo contendere or guilty to, any offense set forth in the

28  level 1 screening standards of chapter 435 or any confirmed

29  report of abuse, neglect, or exploitation. However, the

30  department may, upon the request of an applicant or a

31  certificateholder, exempt the applicant or certificateholder

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  1  from disqualification of certification under this subsection

  2  and issue a letter of exemption.

  3         (2)  The following acts constitute grounds for which

  4  the department may impose disciplinary sanctions as specified

  5  in subsection (3):

  6         (a)  Making misleading, deceptive, or fraudulent

  7  representations on an application for certification.

  8         (b)  Obtaining or renewing, or attempting to obtain or

  9  renew, a certificate by bribery, by fraudulent

10  misrepresentation, or through an error of the department.

11         (c)  Intentionally violating any rule of the

12  department.

13         (d)  Failing to report to the department any person

14  whom the certificateholder knows to be in violation of this

15  part or failing to report a violation involving abuse to the

16  Department of Children and Family Services.

17         (e)  Making or filing a report that the

18  certificateholder knows to be false.

19         (f)  Exercising influence on the patient or client in

20  such a manner as to exploit the patient or client for the

21  financial gain of the certificateholder or a third party.

22         (g)  Improperly interfering with an investigation or

23  inspection authorized by law or with any disciplinary

24  proceeding.

25         (3)  When the department finds any person guilty of any

26  of the grounds set forth in subsection (2), it may enter an

27  order imposing one or more of the following penalties:

28         (a)  Denial, suspension, or revocation of

29  certification.

30         (b)  Imposition of an administrative fine not to exceed

31  $150 for each count or separate offense.

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  1         (4)  The department shall, by rule, designate approved

  2  treatment programs for impaired practitioners as provided in

  3  s. 455.707(1).

  4         (5)(a)  The department shall maintain, or contract with

  5  or approve another entity or organization to maintain, a

  6  registry of certified nursing assistants which includes, but

  7  need not be limited to, the name of each certified nursing

  8  assistant; other identifying information; any information

  9  required by state or federal law; and information regarding

10  any report of abuse, neglect, or exploitation as provided

11  under chapter 435.

12         (b)  A certified nursing assistant shall notify the

13  department in writing of any change in name or address within

14  30 days after the change.

15         468.825  Renewal of certification.--

16         (1)  A certified nursing assistant is eligible for

17  renewal of certification if the applicant has:

18         (a)  Worked a minimum of 8 hours for monetary

19  compensation as a certified nursing assistant in a

20  nursing-related occupation during the 24 months immediately

21  preceding application for recertification, as provided in an

22  attestation submitted by the applicant; or

23         (b)  Successfully completed the written portion and

24  skills demonstration portion of the Florida Nursing Assistant

25  Competency Evaluation.

26         (2)  Based upon written notification of a court of

27  competent jurisdiction, law enforcement agency, or

28  administrative agency, any person who has been found guilty

29  of, regardless of adjudication, or pled nolo contendere or

30  guilty to, any offense set forth in the level 1 screening

31  standards of chapter 435, or who is a confirmed perpetrator of

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  1  any incident of abuse, neglect, or exploitation, may not be

  2  recertified under this section unless the person receives an

  3  exemption from the department under s. 468.824(1).

  4         (4)  The department may charge a fee determined by

  5  rule, but which may not exceed $35, for issuing a duplicate

  6  certificate at the request of a certified nursing assistant.

  7         468.826  Exemption from liability.--If an employer

  8  terminates a certified nursing assistant whose name appears on

  9  the central abuse registry and tracking system of the

10  Department of Children and Family Services or on a criminal

11  screening report of the Department of Law Enforcement, the

12  employer is not civilly liable for such termination and a

13  cause of action may not be brought against the employer for

14  damages, regardless of whether the employee has filed for an

15  exemption from the department under s. 468.824(1). There may

16  not be any monetary liability on the part of, and a cause of

17  action for damages may not arise against, any licensed

18  facility, its governing board or members thereof, medical

19  staff, disciplinary board, agents, investigators, witnesses,

20  employees, or any other person for any action taken in good

21  faith without intentional fraud in carrying out this section.

22         468.827  Duties of the department.--The department may

23  contract with or approve another entity or organization to

24  provide the examination services required under s. 468.823,

25  including development and administration of examinations. The

26  department may also contract with or approve another entity to

27  maintain the certified nursing assistant registry, which may

28  contain information necessary to determine compliance with

29  certification requirements. The provider shall pay all

30  reasonable costs and expenses incurred by the department in

31  evaluating the provider's application and the provider's

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  1  performance during the delivery of services, including

  2  examination services and procedures for maintaining the

  3  certified nursing assistant registry.

  4         468.828  Penalties; rulemaking authority.--

  5         (1)  It is a misdemeanor of the first degree,

  6  punishable as provided under s. 775.082 or s. 775.083, for any

  7  person, knowingly or intentionally, to fail to disclose, by

  8  false statement, misrepresentation, impersonation, or other

  9  fraudulent means, in any application for voluntary or paid

10  employment or licensure regulated under this part, a material

11  fact used in making a determination as to such person's

12  qualifications to be an employee or licensee.

13         (2)  It is a felony of the third degree, punishable as

14  provided under s. 775.082, s. 775.083, or s. 775.084, for a

15  person to falsely make, alter, forge, or counterfeit a

16  certified nursing assistant certificate or letter of exemption

17  authorized under s. 468.824(1). The department may deny,

18  suspend, or revoke the certification of any nursing assistant

19  found to possess a false, altered, forged, or counterfeit

20  certificate or who attempts to use such a certificate in an

21  attempt to gain employment.

22         (3)  The department and the Agency for Health Care

23  Administration shall adopt rules to provide for the initial

24  certification and biennial renewal of certification of

25  certified nursing assistants. An application for certification

26  or renewal must be accompanied by a fee set by the department,

27  which may not exceed $35 plus the cost of applicable

28  background screening. In addition, the department may charge a

29  fee to cover the department's cost of including the name of

30  the certified nursing assistant on the registry. The

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  1  department may periodically audit the records of a certified

  2  nursing assistant in accordance with department rules.

  3         Section 2.  Paragraph (g) of subsection (3) of section

  4  20.43, Florida Statutes, is amended to read:

  5         20.43  Department of Health.--There is created a

  6  Department of Health.

  7         (3)  The following divisions of the Department of

  8  Health are established:

  9         (g)  Division of Medical Quality Assurance, which is

10  responsible for the following boards and professions

11  established within the division:

12         1.  Nursing assistants, as provided under part XV of

13  chapter 468 s. 400.211.

14         2.  Health care services pools, as provided under s.

15  402.48.

16         3.  The Board of Acupuncture, created under chapter

17  457.

18         4.  The Board of Medicine, created under chapter 458.

19         5.  The Board of Osteopathic Medicine, created under

20  chapter 459.

21         6.  The Board of Chiropractic, created under chapter

22  460.

23         7.  The Board of Podiatric Medicine, created under

24  chapter 461.

25         8.  Naturopathy, as provided under chapter 462.

26         9.  The Board of Optometry, created under chapter 463.

27         10.  The Board of Nursing, created under chapter 464.

28         11.  The Board of Pharmacy, created under chapter 465.

29         12.  The Board of Dentistry, created under chapter 466.

30         13.  Midwifery, as provided under chapter 467.

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  1         14.  The Board of Speech-Language Pathology and

  2  Audiology, created under part I of chapter 468.

  3         15.  The Board of Nursing Home Administrators, created

  4  under part II of chapter 468.

  5         16.  Occupational therapy, as provided under part III

  6  of chapter 468.

  7         17.  Respiratory therapy, as provided under part V of

  8  chapter 468.

  9         18.  Dietetics and nutrition practice, as provided

10  under part X of chapter 468.

11         19.  Athletic trainers, as provided under part XIV of

12  chapter 468.

13         20.  Electrolysis, as provided under chapter 478.

14         21.  The Board of Massage Therapy, created under

15  chapter 480.

16         22.  The Board of Clinical Laboratory Personnel,

17  created under part III of chapter 483.

18         23.  Medical physicists, as provided under part IV of

19  chapter 483.

20         24.  The Board of Opticianry, created under part I of

21  chapter 484.

22         25.  The Board of Hearing Aid Specialists, created

23  under part II of chapter 484.

24         26.  The Board of Physical Therapy Practice, created

25  under chapter 486.

26         27.  The Board of Psychology, created under chapter

27  490.

28         28.  The Board of Clinical Social Work, Marriage and

29  Family Therapy, and Mental Health Counseling, created under

30  chapter 491.

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  1  The department may contract with the Agency for Health Care

  2  Administration who shall provide consumer complaint,

  3  investigative, and prosecutorial services required by the

  4  Division of Medical Quality Assurance, councils, or boards, as

  5  appropriate.

  6         Section 3.  Section 400.211, Florida Statutes, is

  7  amended to read:

  8         400.211  Persons employed as nursing assistants in a

  9  nursing home facility; certification requirement.--

10         (1)  A person must be certified pursuant to this

11  section, except a registered nurse or practical nurse licensed

12  in accordance with the provisions of chapter 464 or an

13  applicant for such licensure who is permitted to practice

14  nursing in accordance with rules promulgated by the Board of

15  Nursing pursuant to chapter 464, to serve as a nursing

16  assistant in any nursing home. The Department of Business and

17  Professional Regulation shall issue a certificate to any

18  person who:

19         (a)  Has successfully completed a nursing assistant

20  program in a state-approved school and has achieved a minimum

21  score of 75 percent on the written portion of the Florida

22  Nursing Assistant Certification Test approved by the

23  Department of Business and Professional Regulation and

24  administered by state-approved test site personnel;

25         (b)  Has achieved a minimum score of 75 percent on the

26  written and performance portions of the Florida Nursing

27  Assistant Certification Test approved by the Department of

28  Business and Professional Regulation and administered by

29  state-approved test site personnel; or

30         (c)  Is currently certified in another state, is on

31  that state's registry, has no findings of abuse, and has

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  1  achieved a minimum score of 75 percent on the written portion

  2  of the Florida Nursing Assistant Certification Test approved

  3  by the Department of Business and Professional Regulation and

  4  administered by state-approved test site personnel.

  5

  6  An oral examination shall be administered upon request.

  7         (2)  The agency may deny, suspend, or revoke the

  8  certification of any person to serve as a nursing assistant,

  9  based upon written notification from a court of competent

10  jurisdiction, law enforcement agency, or administrative agency

11  of any finding of guilt of, regardless of adjudication, or a

12  plea of nolo contendere or guilty to, any offense set forth in

13  the level 1 screening standards of chapter 435 or any

14  confirmed report of abuse of a vulnerable adult.

15         (1)(3)  The following categories of persons who are not

16  certified as nursing assistants under part XV of chapter 468

17  this part may be employed by a nursing facility for a period

18  of 4 months:

19         (a)  Persons who are enrolled in a state-approved

20  nursing assistant program; or

21         (b)  Persons who have been positively verified by a

22  state-approved test site as certified and on the registry in

23  another state with no findings of abuse, but who have not

24  completed the written examination required under s. 468.823

25  this section.

26

27  The certification requirement must be met within 4 months

28  after of initial employment as a nursing assistant in a

29  licensed nursing facility.

30         (4)  A person certified under this section on or after

31  September 30, 1990, who has not worked for pay as a nursing

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  1  assistant in a nursing-related occupation for a period of time

  2  during a consecutive 24-month period must be recertified under

  3  this section to be eligible to work in a nursing facility.

  4         (5)  Every certified nursing assistant hired by a

  5  nursing home facility on or after October 1, 1993, must,

  6  within 5 working days after starting employment at a nursing

  7  home facility, submit to the facility a complete set of

  8  information necessary to conduct a records check through the

  9  central abuse registry under chapter 415 and a statewide

10  criminal records correspondence check through the Department

11  of Law Enforcement. The facility shall submit the information

12  provided by the employee, within 48 hours, to the Department

13  of Health and Rehabilitative Services' central abuse registry

14  and to the Department of Law Enforcement, which shall conduct

15  a screening according to the provisions of s. 400.497(2).

16         (6)  Nursing homes shall require persons seeking

17  employment as a certified nursing assistant to submit an

18  employment history to the facility. The facility shall verify

19  the employment history unless, through diligent efforts, such

20  verification is not possible.  There shall be no monetary

21  liability on the part of, and no cause of action for damages

22  shall arise against, a former employer who reasonably and in

23  good faith communicates his or her honest opinion about a

24  former employee's job performance.

25         (2)(7)  If the requirements pursuant to the Omnibus

26  Budget Reconciliation Act of 1987, as amended, for the

27  certification of nursing assistants are in conflict with part

28  XV of chapter 468 this section, the federal requirements shall

29  prevail for those nursing home facilities certified to provide

30  care under Title XVIII (Medicare) or Title XIX (Medicaid) of

31  the Social Security Act.

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  1         (8)  The Department of Business and Professional

  2  Regulation may adopt such rules as are necessary to carry out

  3  this section.

  4         Section 4.  Paragraph (a) of subsection (1) and

  5  subsection (2) of section 400.4255, Florida Statutes, are

  6  amended to read:

  7         400.4255  Use of licensed personnel.--

  8         (1)(a)  Persons under contract to the facility,

  9  facility staff, or volunteers, who are licensed according to

10  chapter 464, or those persons exempt under s. 464.022(1), and

11  others as defined by rule, may administer medications to

12  residents, take residents' vital signs, manage individual

13  weekly pill organizers for residents who self-administer

14  medication, give prepackaged enemas ordered by a physician,

15  observe residents, document observations on the appropriate

16  resident's record, report observations to the resident's

17  physician, and contract or allow residents or a resident's

18  representative, designee, surrogate, guardian, or attorney in

19  fact to contract with a third party, provided residents meet

20  the criteria for appropriate placement as defined in s.

21  400.426.  Nursing assistants certified pursuant to part XV of

22  chapter 468 s. 400.211 may take residents' vital signs as

23  directed by a licensed nurse or physician.

24         (2)  In facilities licensed to provide extended

25  congregate care, persons under contract to the facility,

26  facility staff, or volunteers, who are licensed according to

27  chapter 464, or those persons exempt under s. 464.022(1), or

28  those persons certified as nursing assistants pursuant to part

29  XV of chapter 468 s. 400.211, may also perform all duties

30  within the scope of their license or certification, as

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  1  approved by the facility administrator and pursuant to this

  2  part.

  3         Section 5.  Subsection (1) of section 400.462, Florida

  4  Statutes, is amended to read:

  5         400.462  Definitions.--As used in this part, the term:

  6         (1)  "Certified nursing assistant" means any person who

  7  has been issued a certificate after fulfilling the

  8  requirements of part XV of chapter 468 s. 400.211.

  9         Section 6.  Paragraph (a) of subsection (9) of section

10  400.506, Florida Statutes, is amended to read:

11         400.506  Licensure of nurse registries; requirements;

12  penalties.--

13         (9)(a)  A nurse registry may refer for contract in

14  private residences registered nurses and licensed practical

15  nurses registered and licensed under chapter 464, certified

16  nursing assistants certified under part XV of chapter 468 s.

17  400.211, and sitters, companions, or homemakers for the

18  purposes of providing those services authorized under s.

19  400.509(1).

20         Section 7.  Paragraph (a) of subsection (2) of section

21  455.667, Florida Statutes, is amended to read:

22         455.667  Ownership and control of patient records;

23  report or copies of records to be furnished.--

24         (2)  As used in this section, the terms "records

25  owner," "health care practitioner," and "health care

26  practitioner's employer" do not include any of the following

27  persons or entities; furthermore, the following persons or

28  entities are not authorized to acquire or own medical records,

29  but are authorized to maintain those documents required by the

30  part or chapter under which they are licensed or regulated:

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  1         (a)  Certified nursing assistants regulated under part

  2  XV of chapter 468 s. 400.211.

  3         Section 8.  A certified nursing assistant who holds a

  4  valid certification issued under section 400.211, Florida

  5  Statutes, before October 1, 1998, is in compliance with this

  6  act and is not subject to renewal of such certification until

  7  October 1, 2000.

  8         Section 9.  This act shall take effect October 1, 1998.

  9

10            *****************************************

11                          SENATE SUMMARY

12    Provides for the regulation of the practice of certified
      nursing assistants in this state by the Department of
13    Health. Provides requirements for certification and for
      renewal of certification. Provides fees for certification
14    renewal and issuance of a duplicate certificate. Provides
      for the department to deny, suspend, or revoke a person's
15    certification following a finding or report that the
      person has committed abuse, neglect, or exploitation.
16    Authorizes the department to issue a letter of exemption
      from disqualification of certification. Requires that the
17    department maintain a registry of certified nursing
      assistants. Provides that it is a first-degree
18    misdemeanor to make any false statement or fail to
      disclose information with respect to any voluntary or
19    paid employment or licensure as a certified nursing
      assistant. Provides that it is a third-degree felony to
20    falsify or alter a certified nursing assistant
      certificate or letter of exemption. Authorizes the
21    department and the Agency for Health Care Administration
      to adopt rules. (See bill for details.)
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