Legislature(2001 - 2002)
03/06/2002 01:50 PM Senate HES
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ALASKA STATE LEGISLATURE
SENATE HEALTH, EDUCATION & SOCIAL SERVICES COMMITTEE
March 6, 2002
1:50 p.m.
MEMBERS PRESENT
Senator Lyda Green, Chair
Senator Loren Leman, Vice Chair
Senator Gary Wilken
Senator Jerry Ward
Senator Bettye Davis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
SENATE BILL NO. 342
"An Act relating to the long term care ombudsman."
MOVED CSSB 342(HES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 342 - See HESS minutes dated 3/4/02.
WITNESS REGISTER
Kathy Koster, Administrator
Wildflower Court
Juneau, AK 99801
POSITION STATEMENT: Opposed to SB 342
Jeff Jessee, Director
Alaska Mental Health Trust Authority
Department of Revenue
th
550 W 7 Ave., Suite 1820
Anchorage, AK 99501
POSITION STATEMENT: Supports SB 342
ACTION NARRATIVE
TAPE 02-17, SIDE A
Number 001
CHAIRWOMAN LYDA GREEN called the Senate Health, Education &
Social Services Committee meeting to order at 1:50 p.m. Present
were Senators Leman, Davis and Green.
SB 342-LONG TERM CARE OMBUDSMAN
SENATOR WARD moved to adopt Version F of SB 342 as the working
document of the committee.
There being no objection, CHAIRWOMAN GREEN announced that the
motion carried. She then explained that language was added on
page 3 of Version F that specifies two reasons for which the long
term care ombudsman or staff may not be denied access to a long
term care facility. She then took public testimony.
MS. KATHY KOSTER, Administrator of Wildflower Court, a long-term
care facility and assisted living facility in Juneau, explained
that Wildflower Court is a private non-profit organization with
44 nursing home beds and 11 assisted living beds. She thanked
committee members for the work they do to assure good care for
elderly Alaskans and said that the long term care community in
Alaska supports any kind of legislation that protects elderly
Alaskans. That community believes in establishing a collaborative
relationship with the ombudsman and other state agencies because
they all have the common goal of providing good care. Ms. Koster
said she is opposed to SB 342 because it broadens the scope of
the ombudsman's responsibility beyond that required. She
expressed the following two concerns.
· Language in the bill allows the ombudsman to visit
residents, residents' representatives and others in order to
identify problems. She expressed concern that such visits
could become a fishing expedition for problems. She
believes that the ombudsman should have access to facilities
24 hours per day but the problem lies in soliciting
information about whether anyone has done anything wrong.
· The bill would allow the use of volunteers to identify and
investigate. She believes those activities require strong
skills when working with the elderly population. She
believes there is a grave danger in allowing a lay person,
who may not be trained in investigative techniques or
medical procedures, access to highly confidential patient
records and information. It takes a highly trained
investigator to find out the truth of the matter and to find
deeper or systemic problems.
MS. KOSTER said that long term care facilities in Alaska are
required to notify state and federal surveyors for the nursing
home profession of a problem within a facility within 24 hours
and the surveyors are required to investigate those problems.
She believes that oversight is adequate to ensure good care. She
stated support to bring Alaska's statute into compliance with
federal law, but she does not support going beyond that.
1:55 p.m.
CHAIRWOMAN GREEN informed members that their packets contain
letters from the Nursing Association, the Alaska Mental Health
Trust Authority (AMHTA) and Carl Garver (ph) at the Mary Conrad
Center.
CHAIRWOMAN GREEN then called Mr. Jessee to testify and asked him
why the AMHTA feels this bill is necessary after Governor Knowles
issued an executive order last year to move the long term
ombudsman out of the Department of Administration to avoid any
conflict of interest that some felt existed.
MR. JEFF JESSE, Executive Director of the Alaska Mental Health
Trust Authority, explained that AMHTA received oversight
responsibility for the Office of the Long-term Care Ombudsman
last year and, in the course of taking on that responsibility,
the AMHTA reviewed the statute. During that review it noticed
that Alaska's statutory language was not entirely compatible with
the requirements of the Older Americans Act, a federal law. Under
the Older Americans Act (OAA), each state is required to have a
long-term care ombudsman with certain powers and abilities as a
condition of receiving funds. A volunteer program was part of the
concept behind creation of the Office of the Long-term Care
Ombudsman within the OAA.
Alaska's volunteer program encountered some difficulties so the
office contracted with a national expert on volunteer programs to
develop model training materials. Shortly after acquiring the
Office of the Long-term Care Ombudsman in the AMHTA, he attended
a national training forum for ombudsmen and was surprised to find
this same training manual is being used in a number of states as
a model. When AMHTA took on the office and realized it had
excellent training materials, he set upon hiring a new ombudsman
who would take on the task of gearing the volunteer program back
up.
At that time, the CEO of an assisted living facility in Anchorage
announced her opinion that state law does not authorize the long-
term care ombudsman or volunteers to enter her facility. She
then commissioned a legal opinion confirming her opinion that
state law does not provide that authority, even though that
limitation is clearly inconsistent with the requirements of the
federal act. The AMHTA requested a copy of that opinion but the
request was denied and was told that if the ombudsman tried to
assert such a right of access, litigation might result.
MR. JESSEE said that the AMHTA was focused on getting the
ombudsman's office operative, not on the need for legislation.
He spoke to the Attorney General's Office and national back-up
centers and now feels confident that the ombudsman's office is
required to have access. He noted that although he said the
reason for this bill is one of compliance with federal law, more
importantly it is the right way for the ombudsman's office to
operate. He maintained that most nursing and assisted living
homes provide very good care to older Alaskans but, like any
large industry, they are not uniform in the quality of care they
provide. Problems occasionally arise and, when they do, the
ombudsman needs an effective mechanism to get them resolved. He
surmised that SB 342 will avoid more arguing about the role of
the Office of the Long term Care Ombudsman.
MR. JESSEE said he understands the industry's frustration over
how that office has operated in the past. He does not believe the
relationship between the providers and the long term care
ombudsman has been what it should have been at all times but he
maintained that the office currently has excellent staff. He is
confident in their ability to put together a good program and
carry it out. He urged the industry to focus on holding the
AMHTA accountable for the program it operates. If the Office of
the Long Term Care Ombudsman, employees, volunteers or other
representatives fail to carry out the duties in a fair and
appropriate manner, he encourages the industry to see that the
problems are corrected. He pointed out that one reason the long
term care ombudsman is not located in the office of the state
ombudsman is because if the long term care ombudsman fails to
properly carry out his or her duties, one avenue of recourse is
to the state ombudsman. He repeated the importance of holding
the office accountable for the program it delivers instead of
putting barriers in its way.
CHAIRWOMAN GREEN questioned what the long term care ombudsman
would have to do to investigate if it received a report of an
incident in a facility that was barring access.
MR. JESSEE said it would be messy. If a person was at immediate
risk, he would attempt to find some proxy to get into the home -
whether that be the police or someone from assisted living
licensing or Medicaid licensing. If the risk was less serious,
there would probably be drawn out litigation in an attempt to
figure out who is in charge.
CHAIRWOMAN GREEN asked if access is not usually an issue.
MR. JESSEE confirmed that access is not a big issue across the
state. Most homes understand the vulnerability of the population
they serve and are often supportive of having others involved.
He acknowledged that providers do not always see issues that
arise in the same way and conflict resolution is necessary. He
referred to a statement from Carl Garver in which he said the
office of the long term care ombudsman operates best when it
serves to mediate issues that come up in homes and to help each
side see the point of view of the other. He said he could not
agree more. The goal is not to drag homes through a bunch of
meaningless paperwork and antagonism and negative energy. It is
to try to resolve issues so that seniors are provided the best
care possible.
There being no further questions or testimony, SENATOR LEMAN
moved to amend Version F by deleting the words "in order" on page
1, line 11, and by changing the word "relating" to "related" on
page 2, line 5. He explained that both changes were technical in
nature.
CHAIRWOMAN GREEN announced that with no objections, Version F was
amended.
SENATOR LEMAN then moved CSSB 342(HES) from committee with
individual recommendations and its zero fiscal note.
With no objection, CHAIRWOMAN GREEN announced that CSSB 342(HES)
moved to the next committee of referral.
There being no further business to come before the committee,
CHAIRWOMAN GREEN announced the committee would meet on Friday,
March 15, and then adjourned the meeting at 2:12 p.m.
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