Legislature(1993 - 1994)
02/09/1994 03:00 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
February 9, 1994
3:00 p.m.
MEMBERS PRESENT
Rep. Cynthia Toohey, Co-Chair
Rep. Con Bunde, Co-Chair
Rep. Gary Davis, Vice Chair
Rep. Al Vezey
Rep. Pete Kott
Rep. Harley Olberg
Rep. Bettye Davis
Rep. Irene Nicholia
Rep. Tom Brice
MEMBERS ABSENT
None
COMMITTEE CALENDAR
*HB 376: "An Act relating to services for and protection of
vulnerable adults; and providing for an effective
date."
PASSED OUT WITH INDIVIDUAL RECOMMENDATIONS
*HB 377: "An Act relating to assisted living homes;
repealing references to residential facilities for
dependent adults; and providing for an effective
date."
PASSED OUT WITH INDIVIDUAL RECOMMENDATIONS
(*First Public Hearing.)
WITNESS REGISTER
NANCY BEAR USERA, Commissioner
Department of Administration
P.O. Box 110200
Juneau, Alaska 99811-0200
Phone: (907) 465-2200
Position Statement: Testified in Support of HB 376
and HB 377
CONNIE SIPE, Executive Director
Division of Senior Services
Department of Administration
P.O. 110209
Juneau, Alaska 99811-0209
Phone: (907) 465-3250
Position Statement: Testified in support of HB 376
and HB 377
PAT O'BRIEN, Social Services Program Officer
Division of Family and Youth Services
Department of Health and Social Services
P.O 110630
Juneau, Alaska 99811-0630
Phone: (907) 465-2145
Position Statement: Testified in support of HB 376
and HB 377
DENNIS MURRAY, Administrator
Heritage Place
232 Rockwell
Soldotna, Alaska 99669
Phone: (907) 262-2545
Position Statement: Testified in support of HB 377
DAVE WILLIAMS, Health Planner
Division of Medical Assistance
Department of Health and Social Services
P.O. Box 110660
Juneau, Alaska 99811-0660
Phone: (907) 465-3355
Position Statement: Testified in support of HB 377
TOM BOLING, Administrator
Our Lady of Compassion Care Center
4900 Eagle Ave.
Anchorage, Alaska 99503
Phone: (907) 762-0220
Position Statement: Testified in support of HB 377
PREVIOUS ACTION
BILL: HB 376
SHORT TITLE: ASSIST & PROTECT VULNERABLE ADULTS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
01/14/94 2066 (H) READ THE FIRST TIME/REFERRAL(S)
01/14/94 2066 (H) HES, JUDICIARY, FINANCE
01/14/94 2067 (H) -4 FNS (3-DHSS, ADM) 1/14/94
01/14/94 2067 (H) -ZERO FISCAL NOTE (ADM) 1/14/94
01/14/94 2067 (H) GOVERNOR'S TRANSMITTAL LETTER
02/09/94 (H) HES AT 03:00 PM CAPITOL 106
BILL: HB 377
SHORT TITLE: REGULATION OF ASSISTED LIVING HOMES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
01/14/94 2069 (H) READ THE FIRST TIME/REFERRAL(S)
01/14/94 2069 (H) HES, FINANCE
01/14/94 2069 (H) -FISCAL NOTE (DHSS) 1/14/94
01/14/94 2069 (H) -ZERO FISCAL NOTE (ADM) 1/14/94
01/14/94 2069 (H) GOVERNOR'S TRANSMITTAL LETTER
02/09/94 (H) HES AT 03:00 PM CAPITOL 106
ACTION NARRATIVE
TAPE 94-12, SIDE A
Number 000
CHAIR TOOHEY called the meeting to order at 3:05 p.m. and
asked for a roll call. She announced the calendar and asked
for testimony on HB 376.
HB 376 - ASSIST AND PROTECT VULNERABLE ADULTS
Number 059
NANCY BEAR USERA, Commissioner, Department of
Administration, testified in support of HB 376 and HB 377.
She started by giving a brief overview of HB 376 and HB 377.
She stated that the goal of the legislation was to foster
independence and dignity for elderly and deal with them as
individuals. She continued to say that much of the proposed
legislation resulted from input from the Elder Alaskan
Commission and the Pioneer Advisory Board and other various
senior organizations throughout the state. Also, the
Department of Health and Social Services (DHSS) and the
Department of Administration (DOA) made a collaborative
effort to put forth the legislation.
COMMISSIONER USERA said there are three initiatives, the
first being consolidation of state provided senior services
into a single division. She stated there would be a single
site of access where seniors could access a variety of
programs. She then addressed specifically HB 376, the adult
protection bill. She said adult protection services were
being provided by DHSS, "where they were grouped together by
the function. It was the protective aspect of it and not
the populations being served." She stated that senior needs
are unique and that they should not be grouped together with
systems that also deal with children.
COMMISSIONER USERA stated that there is a large gap in the
continuum of care. She said that home care based services,
senior housing services, and nursing homes are the only
choices for seniors. She inquired about people who only
need help with daily living or people who don't need 24 hour
nursing care, and if there were solutions to these
situations. She felt that the assisted living concept
offers a wide range of opportunity for people to get the
services they need in their communities and to have
community-based services available to them. She stated that
it is a consumer-oriented program that will allow seniors to
buy the appropriate services for themselves. She further
stated that the proposal would allow for licensing of
facilities that offered services to the seniors.
Number 310
CHAIR TOOHEY asked if the services would be obtainable by a
senior who lives in his/her own home.
Number 322
COMMISSIONER USERA said that it was possible, but it was not
the intent. She said home care services are provided as
part of Project Choice to Medicaid eligible Alaskans. She
said there are a number of other support services available,
also. She explained that generally the legislation would
provide opportunities for people to move in to homelike
facilities (facilities with four people or 40 people) and
utilize the available services.
Number 372
CHAIR TOOHEY suggested the term "rooming house."
Number 389
CONNIE SIPE, Director, Division Senior Services, Department
of Health and Social Services, testified in support of HB
376 and HB 377. She stated that HB 376 is a revision of
current law and it would transfer the authority for adult
protective services from Dependent Family and Youth Services
(DFYS) to the Department of Administration (DOA). Ms. Sipe
said that it was protection for all vulnerable adults above
the age of 18 years old.
MS. SIPE told the committee that HB 376 is a combination of
two former bills, "an elder abuse reporting bill and a
disabled abuse reporting bill." She stated that the
proposed legislation offers protection to vulnerable adults
and tries to interfere less with capable adults whether they
be elderly or handicapped. The proposal, she said, would
streamline abuse reporting and would reduce duplicate work
done by state investigative agencies. The legislation would
allow for an investigation by the licensing agency and the
long-term care ombudsman, hence decreasing the number of
agencies involved in an investigation of an abuse report.
MS. SIPE continued on by saying that a centralized
information and referral office for vulnerable adults and
care givers would be opened. She said the proposal would
enable the designation of local care providers as a
preliminary outreach to the community.
MS. SIPE stated that the proposal would honor a competent
adult's refusal of services or request to terminate an
investigation of abuse. Appropriate information on the
status of an investigation would be shared with the reporter
of the abuse. She said that current confidentiality law is
very strictly interpreted and many times the person or
facility who reported the abuse finds it difficult to obtain
information informing them that the abuse victim is safe or
if the investigation is still continuing.
MS. SIPE said that HB 376 would allow family members as
"surrogate decision makers" to consent to services if the
vulnerable adult is temporarily or permanently incapable of
making decisions.
MS. SIPE further stated that the legislation would clarify
when and for what relief the state may seek judicial
intervention to protect a person, citing the domestic
violence writ whereby an injunction may be obtained to stop
a perpetrator from interfering with services to the
vulnerable adult.
Number 500
MS. SIPE indicated that some definitions would change with
the new legislation. Abuse would be redefined to focus on
intentional or reckless, not accidental harm to adults. She
said that even accidental harm to a vulnerable adult must be
reported, causing a "misuse of state resources." She
continued on and said that neglect would be redefined to
focus on intentional failure to provide care, not inability
to care. Exploitation, she said, would include the
exploitation of the victim's person as well as resources,
giving an example of a caregiver helping a client deplete a
bank account with numerous vacation trips.
MS. SIPE reminded the committee that any litigation would be
in a civil context. She said that the proposal is a new
reporting system for abuse to vulnerable adults and that it
allows for the state to interfere less with clients and
offer more centralized services.
MS. SIPE stated that the final section of HB 376 would allow
for a smooth transition and transfer between the
departments.
Number 615
(CHAIR TOOHEY stated for the record that Rep.G. Davis
arrived at 3:08 p.m. and Rep. Kott arrived at 3:18 p.m.)
Number 632
REP. BUNDE asked what the financial impact would be on state
revenues if HB 376 was enacted.
Number 642
MS. SIPE said that, "actually it's a total transfer. The
current resources now in Family and Youth Services are about
$563,000 and those will transfer in total into the Division
of Senior Services." She added that there were "empty" job
positions in the Division of Senior Services that would be
filled and utilized for the new legislation. Therefore,
there would be no increase or decrease in state funding.
Number 680
REP. VEZEY asked what the penalty would be for violating the
proposed statute.
Number 683
MS. SIPE responded that it would be a "Class B felony " if a
professional fails to report an abuse. She also said the
failure to report could be reported to the professional's
licensing board. She reiterated that there would be no
criminal action taken.
Number 705
REP. VEZEY asked if Ms. Sipe knew if anyone had ever been
prosecuted for failure to report an abuse.
Number 716
MS. SIPE replied that there have been investigations but
that she knew of no prosecutions.
Number 724
CHAIR TOOHEY, speaking as a past medical provider, related
how important it was to not only report any abuse but to
follow through. She also spoke of the obligation of the
reporter to make sure that something was done.
Number 725
REP. VEZEY felt that it may not be appropriate for the
promotion of good health care for professionals to be put
under the threat of a criminal penalty.
Number 748
MS. SIPE stated that along with the duty to report comes an
immunity from being sued for reporting. It is a balancing
measure to ensure that people report but also that they feel
protected against possible litigation.
MS. SIPE said that on page 3, line 5, of the proposal was
the criminal penalty for failure to comply.
Number 782
REP. VEZEY asserted that the penalty was a violation and not
a felony and was subject to a fine.
Number 786
MS. SIPE apologized and said that she should be using the
word "misdemeanor" and not "felony."
Number 798
CHAIR TOOHEY stated that it was her intention to move HB 376
out of committee, but she wanted Ms. Sipe to continue with a
sectional analysis.
Number 800
MS. SIPE stated that in fiscal 1993 there were a total of
408 reports made to DFYS of harms done to vulnerable adults.
Of those abuses, 200 were committed against elderly over the
age of 60. She said that over 38% were requests for
services from concerned citizens within that person's
community. She further stated that 23% were reports of
self-neglect (an elderly person not able to care for
his/herself). Economic abuse was 6% and physical abuse was
20%. She said that the statistics did not indicate a "huge"
problem, but a growing problem.
Number 842
REP. BUNDE asked how many cases last year were there of
persons guilty of failure to report?
Number 850
MS. SIPE said that, to her knowledge, there has been no
prosecutions.
Number 877
REP. BUNDE clarified by saying that the legislation was
written in this case "to plug an eventual hole."
Number 886
REP. B. DAVIS asked what kind of protection does the
professional who reports an abuse have under the proposed
legislation?
Number 902
MS. SIPE responded by saying that the two previous bills
that have been combined, resulting in HB 376, have immunity
and liability sections. She said the statute provides
immunity from liability and prohibition against legal
retaliation.
Number 915
REP. B. DAVIS asked "who pays the bill?"
MS. SIPE answered by saying that the state would not cover
that cost, but because of the broad protection of absolute
immunity, there are few law suits.
Number 931
REP. B. DAVIS wanted to know specifically what support would
be provided to the reporter, explaining that the burden of
proof would lie with that person.
Number 938
MS. SIPE said that the legislation does not provide legal
support for the person who reports an abuse.
Number 949
CHAIR TOOHEY asked if there was someone in the room who
could further address the issue. There was no one at that
time.
Number 954
REP. B. DAVIS stated that she would like that information,
but she would not hold up the bill for the requested
information.
Number 957
MS. SIPE said that the first sections of HB 376 define the
protected vulnerable classes. She said the legislation
amended the list of people who are required to report,
including new definitions and additional persons who would
have to report. She said that reporters are also allowed
under subsection E, page 3, line 17, to report abuse to a
police officer.
MS. SIPE stated that page 3, line 26, would streamline the
procedure of reporting abuse. The proposal would protect
the reporter who may report an abuse to the wrong
department.
MS. SIPE further stated that on page 4 of the proposal there
were deletions of the immunity and retaliation sections that
were combined and redefined in Section 6.
MS. SIPE said that Section 2, page 4, line 22, describes the
duties of the Division of Senior Services and the amended
law. It outlines everything the department would be
responsible for. She indicated that page 5, lines 2-7,
would allow other state agencies to serve as designees of
the department.
MS. SIPE said that page 5, line 8, would enable the
reporting of abuse of persons over 60 years of age to be
handled at two places -- the long term care ombudsman and
the licensing branch in DHSS. Reports of abuse to persons
under age 60 would be reported to the licensing agency at
DHSS. Upon receipt of a report of abuse the ombudsman and
DHSS would conduct an investigation, coordinate their
investigations if jurisdiction overlaps, and provide results
to the central information and referral service of the
department (DOA) within 60 days.
MS. SIPE addressed the language on page 6, line 24. She
said it would allow the department to initiate a prompt
investigation under appropriate guidelines. She stated that
subsection B, line 1, indicates the procedure the department
would go through after the completion of an investigation.
She added that a vulnerable adult who is the subject of a
report may request at anytime that the department or
designee terminate an investigation. However, if the
investigation, at that point, has resulted in reasonable
cause for protection for the vulnerable adult, the
department may petition the court for permission to give
protective services for an injunction or the department may
refer the report to the police for a criminal investigation.
MS. SIPE continued on to say that page 7, line 23, would
allow for surrogate decision makers for vulnerable adults.
She said that after the department has determined that the
vulnerable adult needs protective services, and for various
reasons addressed within the bill the adult cannot consent,
the department could select a suitable guardian listed on
page 8, lines 1-27.
Number 154
CHAIR TOOHEY said that "you're assuming that this person is
surrounded by loving family."
Number 157
MS. SIPE stated that if they are not, then the department
would go to the courts to obtain guardianship, which takes
up to 90 days.
MS. SIPE continued on with the analysis. She said page 8,
line 28, would assure that after it was determined that
protective services were needed, the department would
provide those services within ten working days after receipt
of the report that indicated either abandonment,
exploitation, abuse, neglect, or self-neglect.
TAPE 94-12, SIDE B
Number 000
MS. SIPE said that the legislation on page 9, line 16,
stated that protective services are supposed to be delivered
in a culturally relevant manner that would protect the
vulnerable adult's right to the least restrictive
environment and would maximize that person's own decision
making capabilities.
MS. SIPE stated that the guidelines for petitioning the
court for certain protective services were contained on page
9, line 20. She further stated that the vulnerable adult
could petition the superior court for an injunction that
would restrain a caregiver or perpetrator from interfering
with the provision of protective services to the vulnerable
adult.
MS. SIPE stated that Section 3 ensures appropriate
monitoring of the adult and that Section 4 ensures the
confidentiality of all reports of abuse. She said that
Section 4 would allow other appropriate state agencies to
obtain necessary information as it applies to the client.
Number 100
MS. SIPE addressed subsection 5 of HB 376, stating that
regulations must be provided to and reviewed by the Older
Alaskans Commission. She continued on, citing that Section
6 would allow immunity from liability and the prohibition of
retaliation.
MS. SIPE said that subsection 7 contains definitions and she
highlighted the rewriting of definitions of abuse. She
stated the new definition of abuse as being "the willful,
intentional, or reckless nonaccidental, and nontherapeutic
infliction of physical pain, injury, or mental distress; or
sexual assault..." She said that currently abuse is the
infliction of any physical pain. In the proposed
legislation, emotional pain was included. She said it would
protect the person who unintentionally causes pain and has
never had a history of causing pain to a vulnerable adult.
MS. SIPE informed the committee that protective services are
defined on page 12, line 18. She said that protective
services "are those intended to prevent or alleviate harm
resulting from abandonment, exploitation, abuse, neglect or
self-neglect and that are provided to a vulnerable adult in
need of protection."
Number 200
MS. SIPE cited the circumstances under which vulnerable
adults would be unable to consent pertaining to the
guidelines of Section 7. The vulnerable adult may be
incapacitated, living under coercion or fear of reprisal
from the perpetrator, dependent on the perpetrator for
services, care or support, or the adult may not realize that
the refusal of services may result in substantial death or
irreparable harm to self or others.
MS. SIPE stated that Section 8 would ensure a gradual and
smooth transition and that it would allow for an effective
date of July 1, 1994. She asked for questions from the
committee.
Number 251
REP. VEZEY noticed that a substantial amount of existing
statutes were being deleted and very similar wording was
being inserted in other areas. He asked what the reason was
for that.
Number 261
MS. SIPE responded by saying there were two previous laws
that had very similar language and HB 376 was a merging of
those two laws. Subsequently, part of one had to be deleted
so the two could be combined.
Number 275
REP. VEZEY said he was unsure of the definition of abuse.
He explained that the definition of abuse is very subjective
and that he did not understand the term "therapeutic pain."
Number 312
MS. SIPE answered that certain types of physical therapy
necessary for rehabilitation could cause pain to the
vulnerable adult. There is pain involved, but it is
therapeutic.
Number 369
REP. VEZEY stated that he would be in favor of family
guardianship and not state guardianship.
Number 387
CHAIR TOOHEY asked for further testimony on HB 376.
Number 397
PAT O'BRIEN, Division of Family and Youth Services,
Department of Health and Social Services, testified in
support of HB 376 and HB 377. She said that on behalf of
DFYS she strongly supported moving the role of adult
protection services over to the Division of Senior Services.
She felt that the needs of the community would be better
served in the division.
Number 435
CHAIR TOOHEY asked who would pay the legal costs for a
reporter if perhaps the family of the vulnerable adult sues.
Number 448
MS. O'BRIEN said there has never been a case like that and
she did not know how it would be handled if that situation
was to arise.
Number 456
REP. B. DAVIS stated that there are people who are fighting
cases where they have reported abuse and the family has sued
because the report was unsubstantiated. She said it was her
understanding that there is no assistance from the
department.
Number 470
MS. O'BRIEN said she was unaware of any such cases.
Number 472
REP. B. DAVIS asked Ms. O'Brien to explain what would happen
if that situation occurred under the proposed legislation.
Number 475
MS. O'BRIEN replied that if an individual reported an abuse
and subsequently experienced a law suit, she believed the
current statute had a provision that would indemnify the
reporter from being sued. She said she would have to
research it.
Number 488
REP. B. DAVIS asked what was meant by "indemnify" and would
it pay the court costs for the reporter?
Number 500
MS. O'BRIEN said that she needed to research the issue
further.
Number 506
REP. BUNDE stated that Section 6 says that reporters are
immune from civil or criminal liability, indicating that the
judge would have to "throw the case out." He asked if
immunity meant that a reporter cannot be sued, period.
Number 621
MS. SIPE said that there was nothing that could keep someone
from being sued. She said that someone may try to address
the issue of whether the caller was reporting in "good
faith" or not. In that situation a reporter might have to
incur legal fees to testify that the report was made in good
faith (and the case would be dismissed). She didn't think
that the state had a system to indemnify the reporter.
Number 549
REP. VEZEY commented that he felt there was a big difference
between immunity and indemnity. He said, as he understood
the proposal, that the reporter would be immune from civil
or criminal liability, period, and that there is no
indemnification but there is immunity.
Number 677
REP. B. DAVIS wanted to make sure that this legislation
would be stronger than current law regarding liability
versus indemnification.
Number 696
MS. SIPE felt that the new legislation did not address Rep.
B. Davis' concern.
Number 601
MS. O'BRIEN asked if the cases Rep. B. Davis was referring
to were in Anchorage and were in the adult-care field.
Number 604
REP. B. DAVIS responded yes, and that Ms. O'Brien could
contact her office for that information.
Number 614
CHAIR TOOHEY closed HB 376 to public testimony and asked for
further questions from the committee.
Number 619
REP. KOTT stated that he was unclear as to what the current
law is for notifying agencies of child abuse, what the
provisions are, and what are the penalties. He said that
those who would be guilty of committing a violation under
the proposed legislation would incur a $250 fine.
Number 636
MS. O'BRIEN said that she would have to research that
specific issue.
Number 643
MS. SIPE said, "I think it's probably the same."
REP. KOTT referred to page 2, line 12, and asked why a
member of the clergy would be listed as a person with a
professional duty to report abuse.
Number 665
MS. SIPE said that it was the current law for both children
and vulnerable adults stemming from the late 1980's. She
said there was an eventual determination by the legislature
that members of the clergy be included.
Number 697
REP. B. DAVIS made a motion to move HB 376 out of committee
with individual recommendations.
Number 700
CHAIR TOOHEY, hearing no objections, stated that HB 376 was
so moved. She indicated that in the committee bill packets
were copies of a letter from the Homer Senior Citizens. She
then asked for testimony on HB 377.
HB 377 - REGULATION OF ASSISTED LIVING HOMES
Number 737
CHAIR TOOHEY, after some discussion, asked to hear a
sectional analysis from Ms. Sipe.
Number 738
CONNIE SIPE, Executive Director, Division of Senior
Services, Department of Administration, stated that the
proposed legislation would allow elderly and the disabled
people choices, allowing them to remain in their community.
She said that presently there are two types of licensing in
the state for people who don't live at home, but do not live
in a nursing home. There is foster care and adult
residential care (ARC), level I and II. They are licensed
facilities for "dependent adults" by DFYS. She said that
DHSS handles the licensing for any home that takes care of
adults. She said the licensure of the homes providing adult
care would be moved to agencies that have adult programmatic
responsibilities. She further stated that the Division of
Senior Services would handle the licensure and would deal
with the needs of senior citizens and physically disabled.
Licensing for group homes for the mentally disabled or
mentally ill would be handled by the Division of Mental
Health and the Developmentally Disabled (DMHDD). She stated
that "this licensing bill would be used by two different
agencies... and there is a provision in it for how we deal
with facilities that have mixed populations, so they only
have to be licensed once." She said that the department did
not want to over-regulate.
MS. SIPE stated that an important point in the legislation
would allow people to access supportive services and
personal care attendant services; e.g., bathing assistance,
that would be incidental to their personal care or their
supportive care within the group home. She said that the
services could not be obtained under current law. She
explained that it would be a consumer driven program that
would allow people specific services when they are between
the stages of living independently at home or living in a
nursing home.
MS. SIPE said Section 1 of the legislation would promote
care in home-like settings and would set reasonable
standards to protect residents while honoring their
independence. It would require an assisted living plan that
residents would be encouraged to help design and carry out.
Ms. Sipe likened the plan to a landlord/tenant relationship
in regards to the reciprocal disclosures, rights, and
responsibilities guaranteed to them. She said this was not
a state payment mechanism. She hoped that it would be a
licensure that would allow flexibility.
MS. SIPE stated that Section 47.33.010 would apply only to
homes that serve two or more adults not related to the
caregiver. She said that assisted living homes that care
for less than three individuals would be deregulated and
left to private contract. She said assisted living home
indicated that an individual would receive room and board
and one more type of service; i.e., assistance with
activities of daily living, personal care assistance and
health-related services. She further stated that
correctional facilities, alcohol treatment centers,
emergency or runaway shelters are not included in the
legislation.
MS. SIPE continued on to say that Section 47.33.020 is the
key section of the bill. She said the section clarifies the
understanding that home care facilities may provide health
related services if they have the capacity, or they could
allow the resident to bring in community health related care
as if they were in their own home. She said that the home
care facility has the right to ask to the resident to move
to another care setting if it is felt that the proper level
of care cannot be or will not be provided for the resident.
She stated that the section would allow for assistance for
self-administration of medications; i.e., measuring and
tracking of medications. She further stated that the
proposal would allow intermittent nursing care. The section
would enable home staff only, under a nurse's instruction,
to perform certain nursing tasks. The bill would allow for
a nurse from outside the home's staff to provide skilled
nursing care. Also, the legislation would provide for 24-
hour skilled nursing care for up to 45 days, and at the
discretion of the home, possibly beyond 45 days for a
terminally ill resident.
MS. SIPE stated Sections 47.33.030 through 47.33.360
addressed the standards for residents' rights and homes'
duties. She said it was much like the landlord/tenant law,
citing advance payments and trust accounts. She mentioned
temporary residents and house rules as consideration of the
legislation.
MS. SIPE continued with the sectional analysis. She
indicated that in Article 4 the legislation prohibits homes
from operating without a license and would allow smaller
homes to continue to refer to their homes as "adult foster
care homes" despite their new licensing category.
MS. SIPE stated that Section 47.33.410 divides up which
homes will be licensed under which of the two agencies.
DHSS will license homes which provide care for persons with
a mental or developmental disability and the DOA will
license care homes providing for people who are physically
disabled, who are elderly, or have dementia (not chronic
mental illness).
In regards to licensing, MS. SIPE said that departments must
produce standardized forms to help the facilities comply
with regulations. She further stated that state agencies
may impose additional program or care requirements when the
state is either paying for the care of the resident with
state funds or when the state has the responsibility to
certify a home for payment for resident care from federal
funds.
TAPE 94-13, SIDE A
Number 000
MS. SIPE said that Article 5 deals with procedures for
complaints, investigations, adjudicatory proceedings,
sanctions and penalties. She said a great deal of research
and effort was applied by the Attorney General's Office and
DFYS. As a result, the proposed legislation "is the current
state-of-the-art of what you should do... you should be able
to not close someone down, you should be able to have
interim sanctions... other than saying we're going to take
away your license." She further stated that the Article
provides for immunity to a complainant, defines
investigative procedure and powers, and requires written
notice of alleged violations. Ms. Sipe said that the rest
of Article 5 addressed sanctions that a licensing agency
could invoke, citing $500 per day administrative fines (not
to exceed $5000). She said there are procedures to appeal
the sanctions, and to suspend the sanctions until the appeal
is completed.
MS. SIPE stated that Section 47.33.560 specifies the
constitutionally required due process procedures, citing
right to notice, public hearings with ability to close
hearings to protect peoples' privacy, rights of residents to
intervene, and notice of the hearing to all residents. She
further stated that under Section 47.33.570, noncompliance
with the licensure requirement would be a Class B
misdemeanor.
MS. SIPE addressed Article 6, stating that it contains
general provisions that allow agencies the ability to
collect licensing fees and to promulgate regulations. It
also included general definitions used in the chapter. She
stated that the remainder of the bill contains a long
transition section because much of the current law must be
repealed. She stated that page 25, lines 17-21, continues
the exemption from the state procurement code for state paid
contracts for adult residential services provided under
regulation. She said that the department amended the long
term care ombudsman statute. Ms. Sipe further stated that
Section 5 through Section 10 amends the current licensing
law and the only changes are deletions of all references to
facilities for adults, not "dependent" adults.
MS. SIPE indicated that Section 13 provides for transition
between the old and new licensing systems and that Section
14 provides for preparation of new regulations before the
effective date.
Number 172
CHAIR TOOHEY asked for questions.
Number 176
REP. BUNDE, in regard to the fiscal note, asked if there
would be two people who would undertake the inspection and
licensing procedures.
Number 184
MS. SIPE responded yes. She also stated that there were
currently two empty positions within the department that
would be utilized for the new legislation and would be
absorbed by the department's budget this year.
REP. BUNDE encouraged the department to charge a fee for
licensing in light of the state's fiscal challenges.
Number 224
CHAIR TOOHEY said that she assumed many homes would open
their doors to this type of facility and that they would be
able to pay for it.
Number 237
MS. SIPE stated the department did have the power to set a
licensing fee.
Number 250
CHAIR TOOHEY asked if it would be paid not only by "private
pay" but also by insurance and Medicare or Medicaid.
Number 258
MS. SIPE responded, currently, Medicare does not cover
assisted long term care, and it was not an option that
Medicaid will cover. However, under Project Choice, there
could be coverage by the department for residential support
and living arrangements. She explained that currently the
department was providing for 100 elderly and approximately
90 disabled adults. She further stated that possibly
Medicaid could be billed for personal care attendant
services or for private duty nursing.
Number 323
CHAIR TOOHEY asked if the cost charged to the adult would be
at the facility's discretion.
Number 326
MS. SIPE replied yes and added that adult foster homes in
Anchorage range from $800 to $1000 per month, and private
pay homes range from $2000 to $2500 per month. She further
stated that adult residential care facilities are charging
between $1600 and $3000 per month.
Number 337
REP. BUNDE observed that if individuals were paying up to
$3000 per month, an extra $10 dollars would pay for
licensing.
Number 355
REP. B. DAVIS asked if there were going to be any regulation
that would put a cap on how much home care facilities could
charge.
MS. SIPE responded by saying it was the intention of the
legislation to allow the adult consumer to buy for their
specific needs. She said she wanted the market to develop
without regulation.
Number 377
REP. B. DAVIS said that the issue needs to be revisited
because some people do not have much choice in where they
can go and suggested that someone would have to monitor the
market.
Number 389
CHAIR TOOHEY said, "you wouldn't market... going to an
apartment house. If you can find an apartment for $300
versus $800, I'll keep looking for the $300 one."
Number 395
REP. B. DAVIS stated that assisted living was the middle
ground between living independently and living in a nursing
home, and as a private enterprise it needed to be monitored
and reviewed.
Number 419
CHAIR TOOHEY suggested that perhaps the monitoring is done
by Medicaid.
Number 423
REP. B. DAVIS agreed, but said Medicaid would only pay a
certain amount.
Number 425
REP. VEZEY asked about the fines involved in violations.
Number 435
MS. SIPE stated that the guidelines were on pages 20-21.
Number 446
REP. VEZEY referred to Section 47.33.570 and asked Ms. Sipe
if she felt that the state would really want to put a
license violator in jail at considerable cost.
Number 460
MS. SIPE felt that the state would prefer to have that
ultimate decision if compliance through administrative
sanctions could be obtained.
Number 468
REP. VEZEY stated that a Class B misdemeanor fine seldomly
exceeds $250, and to put someone in jail costs $70 to $100
per day. He suggested making a violation a civil penalty.
CHAIR TOOHEY asked Dennis Murray to testify.
Number 500
DENNIS MURRAY, Administrator, Heritage Place in Soldotna,
Alaska, testified in support of HB 377. He indicated that
the bill was to be a social model and pointed out that the
structure of the bill contained medical terminology. He
felt that if the intent was to provide a nonmedical model,
the language suggests differently. He further stated that
"terminally ill" is not defined in the proposed legislation
and submitted that the department address this issue.
MR. MURRAY stated that the way in which the legislation has
been characterized is that there is no state dollars
involved, encouraging private entrepreneurship. He agreed
that it was a laudable goal, but he felt that the needs of
individuals were so many and so different that it would be
difficult for the private market to service all of them.
Number 588
CHAIR TOOHEY asked if clients in nursing homes who have
minimal needs and are borderline dependent are charged less
than a client in need of constant medical care.
Number 593
MR. MURRAY said that currently under law there is no cost
differential. He further commented that the Pioneer Home
system was not mentioned in earlier testimony and that it
serves as the middle stage between independent home living
and nursing home care. However, he said the burden of cost
is not on the individual. He mentioned the authority of the
state to provide Project Choice services that perhaps would
allow for a 24 hour nurse.
Number 651
CHAIR TOOHEY stated that it was her understanding that
persons who utilized Project Choice could not reside in an
assisted living home.
Number 660
MS. SIPE responded by saying that Project Choice will cover
personal care service within an assisted living home or
residential facility.
Number 683
MR. MURRAY again stressed his concerns about the medical
terminology in the legislation. Although, he said, he did
want to see the bill pass out of the HESS Committee.
Number 732
REP. VEZEY asked the committee if they felt the legislation
was sufficient in defining terminally ill.
Number 746
CHAIR TOOHEY said that she did not see the relevance of the
question.
Number 753
REP. VEZEY asked who would make the determination within the
facility if the client is terminally ill, citing that the
person may live ten more years and still be terminally ill.
MS. SIPE said that the department could further research the
definition and incorporate it into the bill.
Number 770
REP. VEZEY reiterated that there is no single definition.
Number 787
DAVE WILLIAMS, Health Planner, Division of Medical
Assistance, Department of Health and Social Services,
testified in support of HB 377. He stated that last year
Project Choice waivers were initiated, but there are people
who will not qualify for a waiver, citing there are 401
people slated to be served in the project's third year. He
highlighted the fact that on page 2, line 29, it was clear
that an assisted living home does not mean a medical
facility or nursing home or that it is not an institutional
level provider. He felt that it would not be covered by
Medicaid. He referred to Section 47.33.430 and stated that
he would like to see the home assisted industry start and be
promoted. He said that the fiscal note for this year would
be zero and that DHSS was working on the following fiscal
notes. He also mentioned that conversions of assisted
living homes into nursing homes is a strong concern of DHSS.
Number 897
TOM BOLING, Administrator, Our Lady of Compassion Care
Center, testified in support of HB 377. He encouraged
passage of the bill out of committee. He felt that there
were definitions that needed to be researched further, but
felt there were no major context changes to be made.
Number 927
CHAIR TOOHEY stated that a letter from the Homer Senior
Citizens was received by the committee and asked if Ms. Sipe
had read it.
Number 930
MS. SIPE replied that she had not read it, but had spoken
with them the previous week.
Number 933
CHAIR TOOHEY said the letter indicated that the Homer Fire
Department was instituting another set of fire codes for the
home and suggested that Ms. Sipe address the concerns of the
letter with the Homer Senior Citizens of Homer.
Number 956
REP. B. DAVIS asked if the department had anything to say
about the medical terminology issue.
Number 960
MS. SIPE stated that the language struck a balance between
medical terminology and social terminology, and the uniform
act was used for the language involved. She said that the
department was discussing some changes.
Number 993
REP. B. DAVIS made a motion to move HB 377 out of committee
with individual recommendations.
Number 996
CHAIR TOOHEY, hearing no objection, moved passage of HB 377
out of committee with individual recommendations.
Seeing no further business before the committee, CHAIR
TOOHEY ADJOURNED the meeting at 5:04 p.m.
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