Legislature(2001 - 2002)
03/04/2002 01:35 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 342-LONG TERM CARE OMBUDSMAN MR. JERRY BURNETT, staff to Senator Green, sponsor of SB 342, explained that SB 342 clarifies the duties of the long term care ombudsman and increases some statutory authority. He gave the following testimony. Each state is required to have a long term care ombudsman under the Older Americans Act (OAA). Alaska's long term care ombudsman is located in the [Alaska] Mental Health Trust Authority and recently the long term care ombudsman resigned, citing as one of the reasons for his resignation, frustration with Alaska's statutes. Discussion with the executive director of the Alaska Mental Health Trust led to the filing of SB 342, which brings Alaska statutes in line with the federal law. Specifically, SB 342 directs the long term care ombudsman to visit long term care facilities and identify problems, rather than assuming the more passive role of only responding to complaints. It provides that no long term care facility may deny immediate access to an employee or volunteer from the long term care ombudsman's office who is responding to a complaint and it gives the long term care ombudsman an active role in developing and providing technical support to volunteer organizations which are interested in the health, safety, welfare and rights of older Alaskans. CHAIRWOMAN GREEN asked Mr. Burnett to address the question of why this issue is being revisited. MR. BURNETT said, according to the executive director of AMHTA, state statutes have not been brought up to date and are not in compliance with federal law so there are tasks the long term care ombudsman should be directed to do which he or she is not. SENATOR LEMAN asked if the subsections in Section 3 will respond to changes in federal law. MR. BURNETT said he is not sure whether they respond to changes in federal law or to the existing federal law. He noted the development of the volunteer organizations and family councils, etcetera, is specified. CHAIRWOMAN GREEN said that sounds like an iteration of the federal statute. MR. BURNETT added that the long term care ombudsman is funded with a combination of state and federal money. This bill should not affect those funds. SENATOR LEMAN referred to subsection (f) and asked what "technical support" means in this context. MR. JEFF JESSEE, Executive Director of the AMHTA, explained that a little over a year ago, the AMHTA took over the job of overseeing the office of the long term care ombudsman. During that process he reviewed the framework under which the office operated and identified discrepancies between the federal and state laws. Section 3 of SB 295 contains a number of functions the long term care ombudsman should be undertaking that are not required in state law. The formation of resident and family councils will assist folks who either live in or have family members in long term care facilities to organize themselves so they aren't dependent on the long term care ombudsman or other individuals. Those councils will carry out a number of roles, all of them of an oversight nature, but they are also very valuable in providing activities or other support services to residents and family members to enable them to work toward common goals. Recently, the long term care ombudsman who was hired after the office came under the purview of the AMHTA, left the position. One reason he cited for his resignation was the difficulty he encountered when looking at reinstituting the volunteer program. When the original OAA was passed over a decade ago, the volunteer ombudsman component was part and parcel of what Congress had in mind. Congress wanted to avoid another huge bureaucracy that relied only upon paid employees to provide the critical functions of providing assistance to people who live in long term care facilities. A volunteer program has been instituted in every state and the OAA sets out clearly that volunteers are a critical part of the program. MR. JESSEE said that volunteers undergo training and testing, and are certified and supervised. He informed members that he provided copies of manuals used to train volunteers to committee members. That manual is quite comprehensive and is being used as a model around the nation. It includes education and training in ethics, the role of the long term care ombudsman, the statutory framework, the aging process, long term care facility regulations, etcetera. The AMHTA believes volunteers are an important part of the program, particularly in Alaska. If state employees were hired to do this work, the office would have a huge staff. He acknowledged there is an ongoing dispute among some assisted living home providers as to whether the current statutes allow volunteers to have access to their homes. One home provider actually got a legal opinion that said the home owner is not required to allow volunteers to enter her facility. The AMHTA hopes this legislation will clarify that matter and prevent litigation. He offered to answer questions. SENATOR LEMAN asked Mr. Jessee if "technical support" is a term of art that means other than financial support and asked if it comes from the federal bill. MR. JESSEE affirmed that term refers to information on how to organize those groups, their structure, regulations and patient rights. CHAIRWOMAN GREEN said she has heard several concerns expressed, the first being about confidentiality that is referenced on the bottom of page 1 of the bill. She asked him to provide an example of how that will work. MR. JESSEE said he will describe what it does not mean. It does not mean that the ombudsman or employees or volunteers in the office are able to share confidential information without complying with the confidentiality requirements that apply to the office. It does mean there is a responsibility on the part of the office to provide information to public agencies about individuals who reside in long term care facilities. Without giving individual information, the ombudsman is responsible for bringing systemic issues to entities such as the legislature, the Older Alaskans Commission and other public agencies that need to be aware of the problems of older Alaskans who live in long term care facilities. CHAIRWOMAN GREEN asked if this information will be dispensed to every agency in the state. MR. JESSEE said it does not and, in fact, the long term care ombudsman's office is prohibited from doing so by AS 47.62.030. AS 47.62.025(b) specifically requires consent of the older Alaskans or their legal guardians or, if unable to consent with no legal guardian, a court order is required to get medical records. CHAIRWOMAN GREEN said the other area she has heard concerns about is at the end of the bill that says a person may not deny immediate access to a long term care facility or to an older Alaskan by the ombudsman, an employee, volunteer, or other representative of the office. She noted it is the "other representative of the office" that is cause for concern. She asked who would fall under that category. MR. JESSEE said he cannot provide a specific example at this time but he said that state and federal laws already require access to any ombudsman, employee, volunteer or other representative to investigate a complaint. They must have completed the training; they must be certified; and they must be supervised. He suggested that it might be an intern who has completed the training. CHAIRWOMAN GREEN indicated that she thought it might be a higher level investigator or inspector. MR. JESSEE said it could conceivably be a contractor. CHAIRWOMAN GREEN said the bigger issue is that these people must be trained, certified, and supervised. MR. JESSEE said that is correct. He commented that he is aware of concerns about how the volunteer program operated in the past. He assured her that the AMHTA will work with the provider community to ensure that the volunteer program operates as it should. If providers feel at any time that the program is not operating in a proper manner, he encourages them to hold that office and the AMHTA accountable for those shortcomings. CHAIRWOMAN GREEN asked Mr. Jessee if the AMHTA will be doing some training or transitioning with the providers when the volunteer program is reinstituted. MR. JESSEE said he has already opened dialog with the providers and will continue to so that they are brought into the process of developing the volunteer program. CHAIRWOMAN GREEN announced that she would hold the bill until Wednesday. MS. LARRAINE DERR, Alaska State Hospital and Nursing Home Association, informed members that SB 342 causes long term care facilities great concern. Alaska has had three long term care ombudsmen in the last three years. The changeover was due to the fact that the ombudsmen were unable to handle the job duties they had: SB 342 adds more responsibilities to the job. She said the Association is comfortable with the ombudsman's ability to investigate and resolve problems, but is concerned about what the word "identify" means. Providers are also concerned about the word "immediate" in relation to access and would like to know that that means. She questioned whether anyone associated with the ombudsman's office can come to the door and demand immediate access. She said the bill has a "big brother" feel to it. She asked for more time to poll her membership and review the bill. CHAIRWOMAN GREEN said more time will be provided and announced that the committee would take up SB 230.
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