Legislature(2005 - 2006)CAPITOL 106

03/17/2005 03:00 PM HEALTH, EDUCATION & SOCIAL SERVICES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 151 RESPONSIBILITY FOR CARE AFTER EYE SURGERY TELECONFERENCED
Moved CSHB 151(HES) Out of Committee
*+ HB 156 COMMISSION ON AGING TELECONFERENCED
Moved CSHB 156(HES) Out of Committee
*+ HB 185 POSTSECONDARY STUDENT IMMUNIZATION TELECONFERENCED
Moved Out of Committee
Bills Previously Heard/Scheduled
= HB 193 LICENSING MEDICAL OR CARE FACILITIES
Heard & Held
HB 193-LICENSING MEDICAL OR CARE FACILITIES                                                                                   
                                                                                                                                
CHAIR WILSON announced that the  first order of business would be                                                               
HOUSE  BILL   NO.  193  "An   Act  relating  to   the  licensing,                                                               
regulation,   enforcement,  and   appeal  rights   of  ambulatory                                                               
surgical centers,  assisted living homes, child  care facilities,                                                               
child  placement  agencies,  foster  homes,  free-standing  birth                                                               
centers,  home health  agencies, hospices  or agencies  providing                                                               
hospice  services, hospitals,  intermediate  care facilities  for                                                               
the  mentally  retarded,  maternity  homes,  nursing  facilities,                                                               
residential  child   care  facilities,   residential  psychiatric                                                               
treatment  centers,   and  rural  health  clinics;   relating  to                                                               
criminal history requirements, and  a registry, regarding certain                                                               
licenses,  certifications, approvals,  and authorizations  by the                                                               
Department  of  Health  and Social  Services;  making  conforming                                                               
amendments; and providing for an effective date."                                                                               
                                                                                                                                
3:06:02 PM                                                                                                                    
                                                                                                                                
RICHARD  MANDSAGER, M.D.,  Director, Division  of Public  Health,                                                               
Department   of  Health   and   Social  Services,   (Department),                                                               
introduced  the slide  entitled, "PUBLIC  HEALTH: Protecting  and                                                               
Promoting  the  Health  of  All  Alaskans,  HB  193,  a  Bill  to                                                               
Consolidate DHSS  Licensing, Certification, and  Background Check                                                               
Functions."  He showed slide number 2 and explained:                                                                            
                                                                                                                                
     The existing  statutory and regulatory  environment ...                                                                    
     that the  Department deals with  all kinds  of programs                                                                    
     and   facilities  that   range  in   size  from   major                                                                    
     hospitals,  like  Providence,  to  small  family  owned                                                                    
     assisted living  homes, to  hospice, to  ambulatory ...                                                                    
     surgery  centers, to  foster  families  - there's  this                                                                    
     whole range  of licensing and  certification activities                                                                    
     that  the Department  does.   And,  two  years ago  the                                                                    
     Governor with "administrative order  108" ... began the                                                                    
     centralization  process of  bringing the  certification                                                                    
     and licensing  activities together  into one  place and                                                                    
     separating them  from the parts of  the Department that                                                                    
     pay  for   services  ...  there   is  some   degree  of                                                                    
     separation  of the  licensing and  certifying from  the                                                                    
     paying  part of  the  organization.   As we've  started                                                                    
     down  that journey,  it has  become very  apparent that                                                                    
     these  programs have  all  grown  up independently  ...                                                                    
     with  their own  sets of  statutes ...  regulations ...                                                                    
     appeal  processes and  they are  sometimes similar  ...                                                                    
     many times  with different steps.   So, the  first real                                                                    
     purpose  here is  an administrative  simplification and                                                                    
     cohesion question  about what  makes sense ...  for the                                                                    
     Department across  all of these  entities to  make them                                                                    
     as  similar  as  possible  ...  in  terms  of  cost  of                                                                    
     certification and  licensing ... even though  there's a                                                                    
     theory that  we can bring together  and centralize this                                                                    
     licensing  function ...  the training  of  staff to  be                                                                    
     able to interact with more  than one type of program is                                                                    
     really markedly  decreased ... We're  aiming for  a day                                                                    
     ...  when one  person could  go prepared  to do  two or                                                                    
     three  activities  rather  than three  separate  people                                                                    
     going  in  on  three  separate plane  trips  into  that                                                                    
     [rural] community.   To get  there, requires us  ... to                                                                    
     try  to get  to much  more standardized  and simplified                                                                    
     rules on the state side  ... on the provider side, many                                                                    
     providers have multiple types of  programs and for them                                                                    
     to  keep track  of  separate program  rules  ... is  an                                                                    
     administrative cost ...                                                                                                    
                                                                                                                                
DR. MANDSAGER  described a past  situation where a provider  in a                                                               
supported living  home was misappropriating funds  collected from                                                               
a  resident.   He  explained that  the state  does  not demand  a                                                               
license  or background  check for  [supported  living homes]  and                                                               
there was  little that the state  could do in terms  of recourse.                                                               
He said that in Alaska there  is a "nurse aid registry" and three                                                               
nurse   aids  were   found  by   investigative  agencies   to  be                                                               
mistreating  residents  in a  nine  month  period and  after  the                                                               
mandatory reporting  period, two  had not  been entered  into the                                                               
registry; one  case had involved  physical violence.   He pointed                                                               
out  that timeliness  issues in  the current  process need  to be                                                               
improved.  He  added that many personal care  attendants work for                                                               
more  than  one   agency  and  are  required   to  have  separate                                                               
background checks with  each agency.  He offered  that doing this                                                               
once for  all agencies  could be more  efficient.   Dr. Mandsager                                                               
reviewed which  department divisions and service  providers would                                                               
be affected, and what would be standardized by HB 193.                                                                          
                                                                                                                                
3:18:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARDNER stated  that  Representative Kohring  and                                                               
she have constituents that are  involved in the health care field                                                               
and provide  services to people  at home, and they  have inquired                                                               
as to  the development  of a  database that  would allow  for the                                                               
detection of people who have  been accused of fraud with Medicare                                                               
billing.   She explained  that there  is no  legal way  to inform                                                               
other agencies that this has occurred  with a past employee.  She                                                               
asked if the registry [mentioned  by Dr. Mandsager] would include                                                               
fraud allegations.                                                                                                              
                                                                                                                                
STACIE  KRALY,   Senior  Assistant   to  the   Attorney  General,                                                               
Department  of  Law, said  that  she  understood the  theoretical                                                               
concept behind the  abuse registry to include a  finding of fraud                                                               
in that context  if the individual had, in  fact, been terminated                                                               
for fraudulent billing  activities.  She explained  that the idea                                                               
[for  the abuse  registry] is  to  create a  civil registry  that                                                               
would include all types of  instances that a prospective employer                                                               
would want to know about, before hiring.                                                                                        
                                                                                                                                
REPRESENTATIVE GARDNER said that there  are gray areas that would                                                               
include there being no record  of offensive behavior.  She opined                                                               
that many employees [in assisted  living homes, or acting as care                                                               
providers] are minimally  skilled and move from  agency to agency                                                               
for a variety of reasons; it  seems that there is the possibility                                                               
for  "low-grade"   violations  to  escape  prosecution   in  many                                                               
instances, which  would provide little  or no information  on the                                                               
registry.                                                                                                                       
                                                                                                                                
3:21:31 PM                                                                                                                    
                                                                                                                                
MS.  KRALY said  that Representative  Gardner brought  up a  good                                                               
point and that ultimately, what  is envisioned is a mechanism, to                                                               
notify the  state for  the basis of  the termination  and provide                                                               
them with some  type of hearing.  She highlighted  that this is a                                                               
process that  benefits both parties  so that one cannot  be taken                                                               
advantage of.                                                                                                                   
                                                                                                                                
3:23:42 PM                                                                                                                    
                                                                                                                                
DR.  MANDSAGER  said that  the  [Division  of Public  Health]  is                                                               
looking for  ideas of how to  make this [registry] have  the best                                                               
value  at a  reasonable cost  and  accomplish all  of the  things                                                               
mentioned.                                                                                                                      
                                                                                                                                
REPRESENTATIVE   GARDNER   inquired    as   to   care   providers                                                               
participating in  the process [of  using the registry]  and asked                                                               
whom they should contact for more information.                                                                                  
                                                                                                                                
DR. MANDSAGER offered himself as a contact.                                                                                     
                                                                                                                                
3:24:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  opined that  there  should  be a  hearing                                                               
process  that defines  limitation on  liability for  the employer                                                               
and provides  information on past employees  [that have committed                                                               
offenses of some kind].  He  said that there may be difficulty in                                                               
the creation of a registry  if employers could face lawsuits from                                                               
past employees.                                                                                                                 
                                                                                                                                
3:26:22 PM                                                                                                                    
                                                                                                                                
MS. KRALY referred to HB 193 and said:                                                                                          
                                                                                                                                
     On  page 13,  section  47.32.170,  there's an  immunity                                                                    
     section, subparagraph C,  which addresses the liability                                                                    
     and the  criminal history check but  we should probably                                                                    
     look at that  with respect to the  abuse registries, as                                                                    
     well ... We  appreciate that comment, and  we'll take a                                                                    
     look at that.                                                                                                              
                                                                                                                                
REPRESENTATIVE  KOHRING inquired  as to  the description  of this                                                               
legislation as an "efficiency measure."                                                                                         
                                                                                                                                
DR. MANDSAGER  said that  he hopes that  as the  population grows                                                               
and more providers come online,  that the staff required to serve                                                               
will remain the same and demonstrate efficiencies over time.                                                                    
                                                                                                                                
3:28:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOHRING inquired as  to Dr. Mandsager's perception                                                               
of  the  medical industry  in  terms  of streamlining  regulatory                                                               
processes.                                                                                                                      
                                                                                                                                
DR.   MANDSAGER  said   that   he  is   also   troubled  by   the                                                               
aforementioned     question     which     concerns     regulatory                                                               
simplifications in a heavily regulated industry.                                                                                
                                                                                                                                
REPRESENTATIVE MCGUIRE asked, "are  there any new categories that                                                               
did not previously require licensure?"                                                                                          
                                                                                                                                
DR.  MANDSAGER said  that one  of  the amendments  that is  being                                                               
worked  on  relates to  the  list  on page  2,  of  HB 193.    He                                                               
explained:                                                                                                                      
                                                                                                                                
     I  have  a concern  ...  as  the medical  industry  ...                                                                    
     evolves ...  and develops  more free  standing services                                                                    
     outside  of  hospitals, how  do  we  have a  list  that                                                                    
     includes some kind  of a statement that  there could be                                                                    
     developed a  checklist or  criteria against  which when                                                                    
     the risks  of a  population is  high enough,  that they                                                                    
     would  then be  brought into  a licensed  and regulated                                                                    
     environment  ... more  and  more  services are  leaving                                                                    
     hospitals and  going into stand alone  types of service                                                                    
     delivery.  At the other  end of the extreme ... there's                                                                    
     ... "supported living homes"  that aren't regulated ...                                                                    
     "assisted living home" starts  at [page] 25 and there's                                                                    
     a set of  criteria that are listed ...   if a person is                                                                    
     ... providing  housing and  food services  or assisting                                                                    
     with  activities of  daily living,  this would  ... say                                                                    
     that  you need  to be  licensed as  an assisted  living                                                                    
     home.  Right  now, there are ... places  out there that                                                                    
     are choosing not  to be licensed ... this  will try and                                                                    
     make it  more clear  what the break  point is  at which                                                                    
     you need  licensure or don't  ... the staff  would need                                                                    
     the background check, as minimum,  as this bill were to                                                                    
     go into place ...                                                                                                          
                                                                                                                                
3:32:26 PM                                                                                                                    
                                                                                                                                
DR. MANDSAGER said that the  Division of Public Health is working                                                               
on a series of amendments [for HB 193].                                                                                         
                                                                                                                                
REPRESENTATIVE  GARDNER inquired  as to  the issue  of employment                                                               
and  a record  of termination  [within the  registry].   She then                                                               
asked if [Alaskan Statute] "47.05.20" is part of HB 193.                                                                        
                                                                                                                                
MS.   KRALY  explained   that  the   first   statutory  cite   in                                                               
subparagraph  C  should be  "47.05.310"  and  then it  should  be                                                               
"47.05.320" and those  are the statutes of reference  on page 27,                                                               
of  HB 193.   Under  "Article 3"  of the  bill, the  new sections                                                               
under  "47.05", which  creates the  "Criminal History;  Registry"                                                               
process and how the background check can occur.                                                                                 
                                                                                                                                
3:36:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON mentioned  the testimony  from the  Alaska                                                               
State Hospital  and Nursing Home  Association, (ASHNHA),  and its                                                               
liability concerns.   He  inquired as  to what  has been  done to                                                               
prevent  liability  issues  and   if  these  concerns  have  been                                                               
addressed, overall.                                                                                                             
                                                                                                                                
DR. MANDSAGER  said, "  ... as  we envision  this in  statute, we                                                               
need  to make  sure  that  there are  steps  in  place either  in                                                               
statute  or  ...  in  regulation   to  make  it  clear  that  the                                                               
Department is  ready to do  such an  action ... you  can't expose                                                               
frail elderly  ... to risk,  before they're moved out  to another                                                               
facility  ... or  another provider  is brought  in to  manage the                                                               
facility."                                                                                                                      
                                                                                                                                
MS. KRALY  clarified that the  bill was  drafted in an  effort to                                                               
bring the 12  statutory provisions into one  umbrella process, in                                                               
an effort  to serve a wide  spectrum of entities.   Currently, if                                                               
there  is a  situation of  immediate risk  in a  nursing home,  a                                                               
temporary manager  must be  contacted to go  through a  series of                                                               
court processes, she  related.  When there is  an assisted living                                                               
home with an  individual at risk, she said,  the individual would                                                               
be removed  and the due-process  hearing would occur later.   She                                                               
clarified that  the instances that  ASHNA had mentioned  in their                                                               
letter  would be  dealt  with using  the  temporary manager,  and                                                               
court process,  because from a  legal and  management standpoint,                                                               
it would not be plausible to take over a large institution.                                                                     
                                                                                                                                
3:40:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  inquired  as  to  the  "taking  over"  of                                                               
smaller assisted living  homes if they are found to  be "at risk"                                                               
situations.                                                                                                                     
                                                                                                                                
MS. KRALY it  would all be laid out through  regulation, and more                                                               
often than not,  a resident would be removed before  a "home" was                                                               
"taken over."                                                                                                                   
                                                                                                                                
CHAIR  WILSON mentioned  the "Position  Paper on  House Bill  193                                                               
Offered by  Rod Betit, President  of ASHNHA," and inquired  as to                                                               
the Department addressing the concerns that were listed.                                                                        
                                                                                                                                
DR.  MANDSAGER  said  that  the  current  regulations  allow  for                                                               
gradation  within the  assisted living  situations.   The balance                                                               
point between a  nursing home and a "level 3"  in a pioneer home,                                                               
for example, is  the discussion point.  In light  of the function                                                               
pioneer  homes have,  he opined  that in  order to  continue that                                                               
level of  home-based, social service,  kind of care,  rather than                                                               
medical care, regulation opportunities will have to be created.                                                                 
                                                                                                                                
CHAIR  WILSON commented  on the  slow  physical deterioration  of                                                               
individuals  within   care  facilities  and  the   adaptation  of                                                               
different forms of care that evolve.                                                                                            
                                                                                                                                
DR.  MANDSAGER   stated  that  one  major   issue  concerns  fire                                                               
marshals.  In  a pioneer home, a fire marshal  would require that                                                               
people be able  to readily get out and if  someone had physically                                                               
deteriorated to  a certain  level [where  they could  not readily                                                               
get  out],  then  that  person  would have  to  move  to  another                                                               
facility.                                                                                                                       
                                                                                                                                
3:45:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CISSNA  commented that  she  would  like to  stay                                                               
informed  as Dr.  Mandsager and  others make  more decisions  and                                                               
modifications on HB 193.                                                                                                        
                                                                                                                                
DR. MANDSAGER opined that in reality,  HB 193 is unlikely to pass                                                               
this legislative  session.  He  advocated for moving  through the                                                               
process, making modifications, hearing  concerns, and coming back                                                               
next year with a clearer version of HB 193.                                                                                     
                                                                                                                                
REPRESENTATIVE MCGUIRE  opined that, in many  instances, language                                                               
within HB 193 is unqualified.   She referred to page 14, line 22,                                                               
and  said  that  this  section   was  a  very  broad  "access  to                                                               
information" clause.  She encouraged  Dr. Mandsager to spend time                                                               
looking  at  HB 193  and  qualifying  sections that  are  lacking                                                               
specific information.                                                                                                           
                                                                                                                                
DR. MANDSAGER  explained that the advantage  of having introduced                                                               
the  bill is  it is  now public  and can  be inspected  from many                                                               
points of  view.   He said  he hopes that  there will  be meeting                                                               
over the summer  and fall and then,  HB 193 can be  acted on next                                                               
winter.                                                                                                                         
                                                                                                                                
MS. KRALY clarified:                                                                                                            
                                                                                                                                
     The genesis of  this section 1, which  is a centralized                                                                    
     licensing  and  related administrative  procedures,  99                                                                    
     percent of  that is  current law.   It's just  been cut                                                                    
     and  pasted   and  cleaned  up   ...  to   create  one,                                                                    
     centralized licensing statute.  If  you look at most of                                                                    
     it, it's  not pulled  out of  the pie  in the  sky type                                                                    
     thoughts,  we're currently  using these  statutes -  it                                                                    
     just pulls  it into  one ...  we took  the best  of the                                                                    
     best, we  felt and we  cleaned up the problems  that we                                                                    
     see  we've envisioned  in  enforcing  and advising  the                                                                    
     department  and created  this centralized  panel, there                                                                    
     are questions and  issues and we knew there  would be -                                                                    
     but just  so that's  clear, we tried  to take  what was                                                                    
     good and make it a little bit better.                                                                                      
                                                                                                                                
[HB 193 was held over.]                                                                                                         
                                                                                                                                

Document Name Date/Time Subjects