Legislature(1993 - 1994)
02/09/1994 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.