AGO Opinion 84179
January 18, 1984
Senator Marge Higgins
Nebraska State Legislature
Lincoln, Nebraska 68509
At your request we have reconsidered our opinion to the Department of Health on June 22, 1983, that "it may not require training courses of more than 20 hours in duration for nurse's aides, care staff members and orderlies. We have concluded it can, within the limitations discussed below.
Since a care staff member is defined in both Laws 1983, LB 235, sec. 2, and LB 273, sec. 1(2) as one approved not only by the nursing home administrator but also by the Department of Health to administer oral medication, we viewed this as the licensing of an occupation for which the Legislature itself had to set the qualifications. Thus the minimum of 20 hours of training the Legislature set as necessary to protect the public from such practitioners was also the maximum.
However, we have now determined that the above bills do not involve the licensing of care staff members, nurse's aides and orderlies, but the licensing of nursing homes. Training requirements for such staff members are not enforced by actions against the staff members, but by actions against the licenses of the nursing homes employing them. In such a situation the
Legislature can delegate to the Department of Health the authority to specify staff qualifications so long as the Legislature specifies guidelines for doing so. Since such staff members must complete a current course of training within 120 days of initial employment, it follows that this is the maximum period of training that can be required of them. Within those time limits, the amount of training that can actually be required for care staff members, nurse's aides and orderlies will depend on the amount of training that will cover the required subjects and be reasonably related to ensuring competent performance by persons in each of those staff positions.
In conclusion, the Department of Health may adopt and promulgate rules and regulations prescribing a course of training for nurse's aides, care staff members and orderlies which may not be less than 20 hours in duration and may not be more than 120 days in duration.
PAUL L. DOUGLAS