Legislature(2001 - 2002)

03/16/2001 12:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  SB  67-ASSISTED LIVING HOMES                                                                              
                                                                                                                              
CHAIRWOMAN GREEN announced  SB 67 to be up for  consideration. She                                                              
said she did not intend to pass it  out today and wanted people to                                                              
have time to work on it.                                                                                                        
                                                                                                                                
MS.   ALISON    ELGEE,   Deputy   Commissioner,    Department   of                                                              
Administration,  explained  that  SB  67  is the  outgrowth  of  a                                                              
regulation  project that  they worked  on with  the Department  of                                                              
Health and  Social Services (DHSS)  on assisted living  licensing.                                                              
She said:                                                                                                                       
                                                                                                                                
     Our  two  departments  have  joint  responsibility.  The                                                                   
     Department of  Administration licenses homes  for senior                                                                   
     residents  and  the  DHSS  licenses  homes  under  their                                                                   
     Division    of   Mental    Health   and    Developmental                                                                   
     Disabilities for those two population groups.                                                                              
                                                                                                                                
     When the  licensing law was  passed in about  1995, this                                                                   
     was a  brand new venture for  us and we decided  that it                                                                   
     was  important  that we  review  the operations  of  the                                                                   
     assisted living industry against  our regulations at the                                                                   
     time  and our  statutes to  see  whether everything  was                                                                   
     working,  whether there  were  areas that  needed to  be                                                                   
     strengthened and/or changed.                                                                                               
                                                                                                                                
Public hearings  were held throughout  the state and they  came up                                                              
with  several items  that  were  recommendations  and couldn't  be                                                              
dealt   with  in   regulation.   They  required   some   statutory                                                              
modification. SB 67 addresses those  areas. The regulation package                                                              
has  been publicly  noticed  and is  just  beginning the  adoption                                                              
process.                                                                                                                        
                                                                                                                                
This particular bill  requires that any assisted  living home that                                                              
receives  public funding  be  licensed. Current  statute  requires                                                              
homes with  three or more residents  to be licensed.  The Division                                                              
of  Senior Services  has  been licensing  any  home that  receives                                                              
public funding  just as a  matter of policy.  This would be  a new                                                              
effort  on  the  part  of  the  Division   of  Mental  Health  and                                                              
Developmental  Disabilities. It also  sets some standards  against                                                              
which background checks  would be conducted. This  is required for                                                              
employees  of  an assisted  living  home.  This would  expand  the                                                              
number of  people that  would be subject  to background  checks so                                                              
that they could  pick up other people who had  unsupervised access                                                              
to residents  of an assisted  living home  on a regular  basis. It                                                              
would include family  members who actually live in  the home along                                                              
with the assisted  living residents. It would  include contractors                                                              
so that they  don't have a loophole where somebody  is not subject                                                              
to a background  check because they are put on  a contract instead                                                              
of being set up as an employee. Regular  volunteers would also get                                                              
a background  check where they  have unsupervised access.  It also                                                              
identified  those people who  would not  be subject to  background                                                              
checks, like  occasional visitors  or people who  are only  in the                                                              
home along with the professional staff.                                                                                         
                                                                                                                                
Number 916                                                                                                                      
                                                                                                                                
CHAIRWOMAN GREEN asked where that section was.                                                                                  
                                                                                                                                
MS. ELGEE  replied that  Section 3 says  who is not  required. She                                                              
said:                                                                                                                           
                                                                                                                                
     The  bill also  provides  provisions  that the  assisted                                                                   
     living industry  has been very interested  in obtaining.                                                                   
     The  bill  sets  out  the  conditions   under  which  an                                                                   
     assisted  living provider could  terminate a  resident's                                                                   
     contract.  Often  times,  the  smaller  assisted  living                                                                   
     homes  are  not  capable  of   managing  every  type  of                                                                   
     behavior   or  medical  condition   and  they   need  an                                                                   
     opportunity when  an individual progresses  beyond their                                                                   
     capability  to handle,  and  subsequently,  then, is  at                                                                   
     risk,  or  has  a  behavioral   issue  that  puts  other                                                                   
     residents  at risk.  They need a  process through  which                                                                   
     they  can terminate  the contract  of  the resident  and                                                                   
     find more suitable placement.                                                                                              
                                                                                                                                
     The  primary  mechanism  through  which  this  would  be                                                                   
     addressed is contained in Section  4 and would allow for                                                                   
     a 30-day  process for  these determination  proceedings.                                                                   
     It lays out specific activities  that would generate the                                                                   
     assisted  living   providers  right  to   terminate  the                                                                   
     contract.                                                                                                                  
                                                                                                                                
     Section  5   essentially  continues  this   process  for                                                                   
     termination  and it  lays out the  residents' rights  to                                                                   
     have  a conference  with  the assisted  living  provider                                                                   
     along with  any advocates or  family members  to contest                                                                   
     that  determination  and  show  why  that  determination                                                                   
     should not occur.                                                                                                          
                                                                                                                                
     There are  occasions where  an emergency termination  of                                                                   
     contract may  be necessary and  Section 7 addresses  the                                                                   
     emergency  termination of  contract and  again lays  out                                                                   
     what would constitute the emergency  and sets out a much                                                                   
     shorter   time  frame   than   the  normal   involuntary                                                                   
     termination.                                                                                                               
                                                                                                                                
     The  bill  also  includes  in   Section  8  an  immunity                                                                   
     provision  for liability  for acts  or omissions in  the                                                                   
     licensing,  monitoring  or  supervision  of  a  licensed                                                                   
     home.                                                                                                                      
                                                                                                                                
     Section  9 addresses the  situation, which has  occurred                                                                   
     and we  determined we did  not have the legal  authority                                                                   
     to  go in an  assisted living  environment and  actually                                                                   
     take over the  operation of the home. Where  the home is                                                                   
     not  being  operated  in a  way  that  is safe  for  the                                                                   
     residents of the home, but where  some time is needed in                                                                   
     order  to place  those individuals  in another  setting.                                                                   
     So, this addresses a real situation  that occurred a few                                                                   
     years ago in the Anchorage area  where we had two fairly                                                                   
     good-sized homes  with approximately 16  residents each,                                                                   
     both  operated  by  the  same   operator  who  ran  into                                                                   
     financial difficulties.  It was impossible to  place the                                                                   
     30-some residents  in other settings over night.  So, we                                                                   
     need  this window  of opportunity and  this is  actually                                                                   
     modeled  after a provision  that's currently in  statute                                                                   
     for nursing  homes that allows the Department  of Health                                                                   
     and  Social Services  the same  kind  of opportunity  if                                                                   
     there is a similar situation with nursing homes.                                                                           
                                                                                                                                
CHAIRWOMAN GREEN asked if there was an appeal process, if                                                                       
someone's license was being revoked for unfair reasons, for                                                                     
instance.                                                                                                                       
                                                                                                                                
Number 1178                                                                                                                     
                                                                                                                                
MR. GARY WARD, Manager, Assisted Living Licensing Program,                                                                      
answered:                                                                                                                       
                                                                                                                                
     The home  does have  an appeal  process if the  Division                                                                   
     takes  action  to  revoke  the   license  either  on  an                                                                   
     emergency   basis   or   through    routine   procedures                                                                   
     revocation.  The home  is issued a  notice of  violation                                                                   
     with the  intent to  impose an administrative  sanction.                                                                   
     That administrative sanction  would be the revocation of                                                                   
     a  license. The  home, then,  has  10 days  in which  to                                                                   
     request a hearing to appeal  the revocation. Unless it's                                                                   
     an imminent  situation, the home is allowed  to continue                                                                   
     to operate. If they submit a  request for an appeal or a                                                                   
     request for a  hearing, then a hearing officer  would be                                                                   
     assigned and  it really depends  on the schedule  of the                                                                   
     hearing  officer and then  an administrative hearing  is                                                                   
     held. That is usually down the  road several months. The                                                                   
     home,  unless  it's  an emergency  situation  where  the                                                                   
     residents  are  at  imminent  risk  of  harm,  would  be                                                                   
     allowed to  continue to operate  pending the  outcome of                                                                   
     the hearing.                                                                                                               
                                                                                                                                
CHAIRWOMAN GREEN referred to the immunity in Section 8 and asked                                                                
if that was typical language.                                                                                                   
                                                                                                                                
MR. WADE said he thought it was.                                                                                                
                                                                                                                                
CHAIRWOMAN GREEN asked what that language was designed after.                                                                   
                                                                                                                                
MS. ELGEE answered that is was language very similar to that that                                                               
protects child protection workers.                                                                                              
                                                                                                                                
SENATOR LEMAN wanted clarification on how an assisted living home                                                               
was taken over if it was in imminent danger.                                                                                    
                                                                                                                                
MR. WADE replied:                                                                                                               
                                                                                                                                
     In  terms   of  the   court  order,  administration   of                                                                   
     receivership,  you would have  to petition the  superior                                                                   
     court  for temporary administration  or receivership  of                                                                   
     the home, in which case, the  administration of the home                                                                   
     would  be  present  at  that  hearing  to  defend  their                                                                   
     situation. So,  it's not something we can  walk right in                                                                   
     and take  over the home. We  would have to  petition the                                                                   
     court for receivership or temporary administration.                                                                        
                                                                                                                                
SENATOR LEMAN asked what the timeline was for when the department                                                               
decides that needs to be done and when it actually gets done.                                                                   
                                                                                                                                
MR. WADE replied that it is new language and they don't have                                                                    
experience with this procedure. Previously, the options they had                                                                
were to do an emergency revocation of the license. He said:                                                                     
                                                                                                                                
     In  other words,  go in,  serve  a notice  to the  home,                                                                   
     notify  all the residents  and/or their  representatives                                                                   
     and  inform  that the  license  was being  revoke  under                                                                   
     emergency conditions.  The reason, as Ms.  Elgee stated,                                                                   
     was  that in those  situations, it's  very difficult  to                                                                   
     find especially  if you have a large home  with a fairly                                                                   
     large  number  of  residents,  it's very  hard  to  find                                                                   
     alternative places  for them on very short  notice. It's                                                                   
     very difficult  for senior citizens, elders,  anyone, to                                                                   
     make a move like that even though  it's required because                                                                   
     they  are  at  imminent  risk.  So,  the  court  ordered                                                                   
     administration would  allow us to potentially  go in and                                                                   
     take  over temporary  administration of  the home or  at                                                                   
     least allow  enough time for  the residents of  the home                                                                   
     and/or the  families and  their representatives  to look                                                                   
     for alternative placements.                                                                                                
                                                                                                                                
SENATOR LEMAN  said that much of  this was patterned  after things                                                              
in child welfare and he just wanted an understanding.                                                                           
                                                                                                                                
MS. ELGEE  responded that  if this language  was in effect  in the                                                              
instance she  told them  about, they would  have tried to  do some                                                              
court  receivership.  They  worked  for several  months  with  the                                                              
administrator  of the  homes to try  to correct  the problems.  It                                                              
became  obvious that  he  could not  overcome  all the  underlying                                                              
financial  difficulties.  "It's   a  last  resort  effort  and  we                                                              
wouldn't be  attempting the other kinds  of things that  we can do                                                              
in terms of working with the homes first."                                                                                      
                                                                                                                                
MR. SHELBY LARSON, Administrator,  Health Facilities Licensing and                                                              
Certification,  said they  hadn't had circumstances  like  that in                                                              
the  12 years  he  had  been with  the  agency. They  didn't  have                                                              
similar language either on nursing home licensure.                                                                              
                                                                                                                                
SENATOR  LEMAN  said it  seemed  like  no  one could  answer  that                                                              
question  very well  and  he then  asked Ms.  Elgee  if this  also                                                              
applies to family members who take care of their related family.                                                                
                                                                                                                                
MS. ELGEE answered:                                                                                                             
                                                                                                                                
     In  an assisted  living home  where  the family  resides                                                                   
     along  with the  assisted living  residents, the  family                                                                   
     members  that may not  provide direct  care, but are  in                                                                   
     the home and, therefore, have  access on an unsupervised                                                                   
     basis to the residents, would  also require a background                                                                   
     check unless they're younger than 16.                                                                                      
                                                                                                                                
SENATOR LEMAN asked  about language on page 2,  line 10, referring                                                              
to a  family member  who is maybe  off at  school, but  moves back                                                              
into the  home. Would that family  member, if they were  not there                                                              
and then  moves back  into the  home, be  subject to a  background                                                              
check?                                                                                                                          
                                                                                                                                
MS.  ELGEE  replied that  the  background  checks would  apply  to                                                              
visitors, and he  could think of that family member  as a visitor,                                                              
who are residing in the home for  more than 14 days. A student who                                                              
is residing  in  a home for  the summer  would be  subject to  the                                                              
background check, as well.                                                                                                      
                                                                                                                                
SENATOR LEMAN  said he thought to  think about that area  a little                                                              
bit more.                                                                                                                       
                                                                                                                                
MR. ELMER LINDSTROM, Special Assistant  to the Commissioner, DHSS,                                                              
said  they  had  a  memo  to  him  from  Mr.  Larson  relating  to                                                              
background  checks in  nursing homes.  They did  not suggest  that                                                              
background  check  information  be   added  to  the  nursing  home                                                              
statute,  but it  has been  Mr. Larson's  intention  to adopt,  in                                                              
regulation,  the same background  check  standards that they  have                                                              
now developed  for assisted living and  in order to do  that, they                                                              
would need some statutory revisions  for the nursing home statutes                                                              
that are parallel  to those already included in  the bill relative                                                              
to assisted living homes.                                                                                                       
                                                                                                                                
CHAIRWOMAN GREEN said they would continue to work on this bill.                                                                 
                                                                                                                                
MR.  RON   PARKS,  Housing   Administrator,  Friendship   Services                                                              
Assisted Living, said they were a  nonprofit organization and used                                                              
volunteers.  The  fingerprint  requirements   would  add  $94  per                                                              
volunteer to  their budget,  which they  can't afford.  Every year                                                              
they have 50 - 60 volunteers come  through their establishment. He                                                              
asked them to  clarify the difference between  a regular volunteer                                                              
and  an  occasional volunteer.  In  Section  2,  line 10,  he  was                                                              
concerned specifically when volunteers  are in direct contact with                                                              
staff  and  how  that  would  work  with  church  groups  that  do                                                              
fellowship with some of his residents.  He was concerned that they                                                              
might be overprotecting  the residents and violating  their rights                                                              
if they want  to invite one of  those persons into their  rooms to                                                              
have their services.  He wanted to know when they  would come into                                                              
violation as far as a criminal background check.                                                                                
                                                                                                                                
CHAIRWOMAN  GREEN asked  Ms. Elgee  and  Mr. Lindstrom  to see  if                                                              
there was a better definition and  if regulations would cover that                                                              
more clearly that the language before them.                                                                                     
                                                                                                                                
MR.  PARKS said  he  had a  hard time  understanding  some of  the                                                              
terms. He asked if they could define 'contractor.'                                                                              
                                                                                                                                
MR. LINDSTROM  replied  that the  exceptions in  Section 3  say it                                                              
doesn't  include a  contractor  who  comes into  the  home who  is                                                              
telephone repairman  repairing utilities.  A contractor  is really                                                              
people who  are providing services  to the residents in  the home,                                                              
not a contractor in the sense of a building repairperson.                                                                       
                                                                                                                                
CHAIRWOMAN GREEN  asked if  a contractor could  be a  therapist or                                                              
someone who provided food services.                                                                                             
                                                                                                                                
MR. LINDSTROM replied yes. In his  department, for instance, there                                                              
would  be other  Health  and Human  Services  providers who  would                                                              
likely be  contractors providing  services to  people in  the home                                                              
and that is what they are speaking to.                                                                                          
                                                                                                                                
CHAIRWOMAN GREEN asked  if those people weren't  already under the                                                              
requirement of a background check.                                                                                              
                                                                                                                                
MR.  LINDSTROM replied  that  some  of them  might  already be  by                                                              
virtue of licensure requirements,  but he couldn't say that all of                                                              
them would be.                                                                                                                  
                                                                                                                                
CHAIRWOMAN GREEN asked if that helped Mr. Parks.                                                                                
                                                                                                                                
MR.  PARKS replied  that helped  him  somewhat and  asked if  they                                                              
could change  "regular volunteers"  to "care providers".  He asked                                                              
since these  people are coming into  his facility, since  he can't                                                              
use other  agency's background checks  for their purposes,  does a                                                              
health care provider who comes into  a room and closes the door to                                                              
take blood for blood work need to have a background check?                                                                      
                                                                                                                                
MS. ELGEE responded  that Section 3 (2) specifically  exempts from                                                              
the background  check requirement  an individual who  is providing                                                              
services  to the  resident  as an  employee  of  a care  providing                                                              
entity that is not affiliated with the assisted living home.                                                                    
                                                                                                                                
CHAIRWOMAN GREEN asked if this could be an RN or a doctor.                                                                      
                                                                                                                                
MS. ELGEE  said the  example of  a physical  therapist was  a good                                                              
one.  They contract  with  physical  therapists  in the  Pioneers'                                                              
Homes, but  the physical  therapist is  usually affiliated  with a                                                              
hospital or another medical practice.                                                                                           
                                                                                                                                
MR. PARKS  asked if they are  already health care  providers, they                                                              
already have their own background checks.                                                                                       
                                                                                                                                
MS. ELGEE  responded that  the assisted living  home would  not be                                                              
required  to  provide  a  background  check as  a  part  of  their                                                              
licensure for those individuals.                                                                                                
                                                                                                                                
MR. PARKS  said the volunteer program  is very important  in their                                                              
facility  and are important  in their  socialization programs  and                                                              
getting people out. The wording in  SB 67 in regards to volunteers                                                              
would be  so restrictive that it  would cripple their  program and                                                              
he  asked  if language  could  be  put  in  that would  cover  the                                                              
background checks for their volunteers.                                                                                         
                                                                                                                                
MR. WARD  responded  that Mr. Parks  had some  good questions.  He                                                              
said  there was  quite a  bit of  discussion about  them. The  key                                                              
piece in terms of  volunteer, is if the volunteer  was going to be                                                              
in direct  contact with a  resident in an unsupervised  situation.                                                              
Groups  from schools  and groups  to  provide entertainment,  etc.                                                              
would probably  be in  a public  area in  a situation where  staff                                                              
would be in  close proximity and  those would not be subject  to a                                                              
background check. They are most concerned  about an individual who                                                              
is  coming  in on  a  one on  one  basis.  He thought  the  larger                                                              
percentage of volunteers would not  be required to have background                                                              
checks.                                                                                                                         
                                                                                                                                
MR. PARKS  said their senior  companion program could  be arranged                                                              
in  a public  area  where  staff is  present,  but  if a  resident                                                              
invites someone  they have befriended  into their room  where they                                                              
have the right  to close the door  if they wish, this  is the main                                                              
gray area of his concern.                                                                                                       
                                                                                                                                
CHAIRWOMAN GREEN said there was nothing  in their fiscal note that                                                              
would cover the cost of background checks.                                                                                      
                                                                                                                                
MS.  ELGEE   said  that   was  right.   The  individuals,   before                                                              
employment, are asked  to get the name check and  they cover those                                                              
costs. They cover the costs for people in the Pioneer Homes.                                                                    
                                                                                                                                
MR. PARKS  agreed that they do  cover the cost for  employees, but                                                              
criminal background checks are very  restrictive. Just fingerprint                                                              
checks are $94 and he doesn't have that in the budget.                                                                          
                                                                                                                                
CHAIRWOMAN  GREEN said  she  hoped they  could  work through  this                                                              
problem  and not  have it  burdensome  to the  people who  provide                                                              
services and set SB 67 aside.                                                                                                   

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