Legislature(2001 - 2002)
03/16/2001 12:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.