Legislature(1999 - 2000)
03/03/1999 01:35 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE March 3, 1999 1:35 p.m. MEMBERS PRESENT Senator Pete Kelly, Vice-Chairman Senator Gary Wilken Senator Kim Elton MEMBERS ABSENT Senator Mike Miller, Chairman Senator Drue Pearce COMMITTEE CALENDAR SENATE BILL NO. 56 "An Act allowing the disclosure of reports with regard to inspection and investigations of certain health care facilities, home health agencies, hospice programs, and assisted living homes; authorizing the Department of Health and Social Services to license home health agencies; and providing for an effective date." -HEARD AND HELD SENATE BILL NO. 57 "An Act relating to vulnerable adults; and providing for an effective date." -HEARD AND HELD SENATE BILL NO. 58 "An Act establishing an in-home and community-based services program for certain adults with long-term care needs; and providing for an effective date." -HEARD AND HELD SENATE BILL NO. 59 "An Act relating to the certificate of need program for nursing care facilities and other facilities; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 56 - No previous action to report SB 57 - No previous action to report SB 58 - No previous action to report SB 59 - No previous action to report WITNESS REGISTER Mr. Elmer Lindstrom, Special Assistant Department of Health & Social Services PO Box 110601 Juneau, AK 99811-601 Ms. Alison Elgee, Deputy Commissioner Department of Administration PO Box 110200 Juneau, AK 99811-0200 Mr. Dwight Becker, Protective Services Coordinator Department of Administration Division of Senior Services 3601 C St., Suite 310 Anchorage, AK 99503-5984 Mr. Jay Livey, Deputy Commissioner Department of Health & Social Services PO Box 110601 Juneau, AK 99811-0601 Ms. Jane Demmert, Executive Director Alaska Commission on Aging PO Box 110209 Juneau, AK 99811-0209 ACTION NARRATIVE TAPE 99-08, SIDE A Number 001 VICE-CHAIRMAN KELLY called the Senate Health, Education and Social Services (HESS) Committee to order at 1:35 p.m. and announced that after the introduction of guests by Senator Elton the committee would take up SB 56, a bill resulting from the Long-Term Care Task Force Final Report. Senator Elton introduced members of local Cub Scout Den 15, including Den Mother Kathleen Lyden, Max Boatwright, Ben Bettisworth, Forrest Clough, John Holt, Trevor Lyden, Kelly Newman, and Karen Perdue. VICE-CHAIRMAN KELLY invited them to sit at the committee table. SB 56-HOME HEALTH AGENCIES/HOSPITALS/HOSPICES VICE-CHAIRMAN KELLY asked Elmer Lindstrom to address SB 56, and announced that Senator Wilken will take the lead on most of the discussion as he was co-chairman of the Long-Term Care Task Force (LTCTF). Number 065 MR. ELMER LINDSTROM, Special Assistant to the Department of Health & Social Services, briefly stated SB 56 has two primary purposes. First, it would allow the department to continue to provide a licensing regime for home health agencies which it has been doing under the general powers of the department for some time. Recently the Department of Law recommended the department acquire specific statutory authority to license this type of agency. The bill is technical in nature, giving explicit authority to the department to continue licensing these agencies. More importantly, MR. LINDSTROM continued, the legislation also gives the department the ability to disclose to the public licensing reports on all of the types of facilities and agencies. It is a good consumer protection measure, and useful information for persons shopping for a type of facility. He said it's a "clean little bill," endorsed by the LTCTF and the department. MR. LINDSTROM brought up one suggested amendment. The home health language is placed in AS 18.28 which relates to state assistance for community health aide programs and has no relation to the additional material being added to AS 18.28. Department staff suggested that AS 18.18 would be a more appropriate place to put the language. If the committee is interested in making that change, MR. LINDSTROM requested that his staff be able to work with Legal Services to quickly resolve it. Number 115 VICE-CHAIRMAN KELLY stated it's a good idea, and he recommended that the amendment be drafted before the series of bills is again taken up by the committee. SENATOR WILKEN commented that SB 56 relates to Recommendation #3 of the LTCTF, and he referred to the report backup. He said this legislation has the wholehearted endorsement of the task force and the committee. VICE-CHAIRMAN KELLY mentioned that Mr. Dwight Becker is on teleconference, and asked Mr. Becker if he is available to answer questions on SB 56 or any of the other bills. MR. BECKER responded he would address SB 57 and SB 58. SENATOR WILKEN commented that SB 56 opens the record, and asked if it is essentially a consumer information bill. MR. LINDSTROM replied "absolutely," and the prohibition on being able to disclose this information is a relic of an old federal law. SENATOR WILKEN asked if the legislation protects identifi- cation of specific clients or personal data. MR. LINDSTROM responded he's very certain the licensing reports would always protect the confidentiality of clients. Number 157 SENATOR ELTON mentioned to the zero fiscal note on SB 56. He asked if staff would go through the files to purge client names when someone comes in to ask for disclosure of records. MR. LINDSTROM replied he doesn't believe the license reports would contain confidential information on individual patients. SENATOR WILKEN asked Mr. Livey if he would like to add to the discussion on SB 56. He declined to do so. SB 57-CARE FOR VULNERABLE ADULTS VICE-CHAIRMAN KELLY brought up SB 57 for a quick overview and suggested that questions be directed to Mr. Becker who is waiting on-line. Number 178 MS. ALISON ELGEE, Deputy Commissioner, Department of Admini- stration, explained the Division of Senior Services operates the Adult Protective Services program for the state. There is an apparent oversight in the existing statutory structure that prevents the department in some circumstances to complete an investigation on a Report of Harm. Right now the law allows the vulnerable adult that is under investigation, or the surrogate decision-maker for that vulnerable adult, to ask that the department terminate an investigation. If, in fact, the surrogate decision-maker is the subject of that investigation or the vulnerable adult is thought to not be competent to make that decision on their own behalf, the department has no ability to continue the investigation under the current law. This proposal will correct that so that a thorough investigation can be completed, and it will also allow the department to share infor- mation in certain circumstances as well. MS. ELGEE said that Mr. Becker will answer specific questions. Number 201 SENATOR ELTON asked about the role of the long-term care Ombudsman, its investigative reports, and if this bill also covers the Ombudsman. MS. ELGEE answered that this bill is the result of a recommenda- tion that the long-term care Ombudsman brought to the LTCTF regarding a situation encountered in investigations conducted by both that office and by Adult Protective Services. A set of protocols determines which direction a complaint might go for an investigation internal to the office. Frequently investigations are conducted by the social workers in Adult Protective Services with participation by the long-term care Ombudsman. SENATOR ELTON asked if the Ombudsman is under the same protocols as the department. MR. DWIGHT BECKER, Protective Services Coordinator, replied that different state statutes apply to the long-term care Ombudsman, as well as a federal statute. That office investigates instances of reported abuse against seniors aged 60 and older who are in licensed facilities that also include nursing homes. The Ombudsman also advocates for persons aged 60 and over and handles complaints against agencies or facilities. The department has developed protocols to coordinate investigations, with Protective Services looking into licensing actions and the Ombudsman following up on alleged abuse. SENATOR WILKEN remarked for the record that SB 57 reflects the LTCTF Recommendation #7. He asked if this legislation is "preventative maintenance" resulting from an expectation that this exploitation may become an issue in the future as the elderly population increases. MS. ELGEE replied the department was concerned in a couple of circumstances that a surrogate decision-maker was at the heart of a Report of Harm, but was unable to pursue it. It is not a widespread issue now, but she said the Senator is correct in saying this measure is preventative. SENATOR ELTON asked if "vulnerable adult" is further defined by the age of that adult. MS. ELGEE answered that is correct. The Adult Protective Services and the statutes closely parallel the Children's Protective Services statutes. The distinction is age. SENATOR ELTON asked if a parent is also a guardian, and would the parent be covered by this bill if that parent is making decisions for a 25-year old. MR. BECKER replied the parent of a 25-year old could be the guardian if legally appointed by court order, or if the parent had legal power of attorney with authority to make decisions. Being the parent of an adult doesn't automatically convey the right to be the guardian. SB 58-SERVICES FOR ADULTS WITH LONG-TERM NEEDS VICE-CHAIRMAN KELLY brought up SB 58 and invited Deputy Commissioner Alison Elgee to provide an overview for the committee. MS. ELGEE stated SB 58 creates a new program for home and community based care for people who, for two reasons, may not meet the Medicaid eligibility requirements. People either do not meet the financial criteria to make them eligible for Medicaid, or they do not meet the level of need determination to be eligible for the department's home and community based care waivers. The level of need under the waiver programs requires an individual to need nursing home level of care. A number of older Alaskans who are struggling to retain their independence and stay at home have some financial resources that are not significant enough to cover the cost of their home care. These individuals have not reached the nursing home level of care, but they will end up in a nursing home without some inter- vention and early supports. This legislation establishes a "new pot of money" to be available to people in those circumstances. MS. ELGEE continued, stating it is not intended to supplement or supplant existing state programs. It would be available to those people who have no other public financing mechanisms. It is not an entitlement program and would only operate to the degree that the department has money to provide assistance to people. The department would look first at an individual's personal resources, including insurance and other third-party payment sources, before making available the monies in this fund. Number 318 SENATOR WILKEN noted that this bill relates to Recommendation #13 in the LTCTF final report and it carries a $425.0 fiscal note. He said that of the four bills, SB 58 will require the most caution in financing so that it does not balloon out of proportion. Nonetheless, the task force felt that the state should help people to stay in their homes without financial burden. SENATOR WILKEN stated this bill will require a lot of work. VICE-CHAIRMAN KELLY asked for a clarification of the level of services needed by people who would not qualify for Medicaid. MS. ELGEE explained that participation in the Choice Waiver for the Elderly and the Adult with Physical Disabilities Waiver requires meeting two eligibility criteria including income and level of need, e.g., nursing home level of care. Number 362 VICE-CHAIRMAN KELLY asked how the state gets around the Medicaid criteria to allow those who don't normally qualify to receive it. MS. ELGEE repeated that this legislation proposes a new program and new funding that would be available to people who don't qualify for Medicaid. SENATOR ELTON asked if this client base is being served in any other way now, or will these be new clients. MS. ELGEE replied that the senior population is rapidly expand- ing. The department is presently serving those who meet the Medicaid eligibility or who are in the Pioneer Homes. Beyond that, the department has few public resources to provide to seniors. Frequently those who need this kind of support and can't make it work at home are leaving the state to seek afford- able care elsewhere. This will allow the department to provide some supports for people who want to remain in Alaska. DOA also views it as cost avoidance because with early intervention, a number of people will never reach the nursing home level of care. Spending a little money early on will save a lot of money later. VICE-CHAIRMAN KELLY asked if the task force looked at ways of using private care givers to achieve this same end. SENATOR WILKEN replied private care givers are providing some of those services now to a group of people who are not Medicaid eligible yet under a financial strain to afford the services. MS. ELGEE explained the department would not directly provide these services with state employees, nor does it directly provide the waiver programs. DOA uses the services of nonprofits and private care givers, and it is providing a financing mechanism in this legislation. SB 59-CERTIFICATES OF NEED FOR HEALTH FACILITY VICE-CHAIRMAN KELLY brought up SB 59 and announced that Mr. Jay Livey would provide an overview of the bill. Number 376 MR. JAY LIVEY, Deputy Commissioner, Department of Health & Social Services, explained that SB 59 would change the criteria for review of Certificate of Need applications for long-term care. Currently, if a facility is going to cost more than $1 million, it has to ask for a Certificate of Need from the department. Under the current criteria of review, the standards are availability, accessibility and quality. If a need can be demonstrated for the nursing bed, the DHSS is hard-pressed not to say yes. This bill adds several other criteria for the department to consider in its decision, including whether or not the nursing home expansion fits into the plans of the community for long-term care; whether or not the service provided will be efficient; and most importantly, the cost-effectiveness of the nursing home expansion. MR. LIVEY said 90% of the nursing home costs in Alaska are paid by Medicaid. The department operating budget in particular has an interest in the expansion of nursing home beds. If other ways to provide that long-term care were less expensive or more cost-effective to the state, the department could consider those in its decision-making process. Number 401 SENATOR WILKEN commented that SB 59 relates to Recommendation #21 of the LTCTF final report. He asked Mr. Livey to discuss the skepticism surrounding this kind of legislation. MR. LIVEY replied the skepticism probably arises from the degree to which people want the state to regulate this kind of business. The nursing home industry is largely run by private, nonprofit organizations, but it's all state money. Ninety percent of the $43 - $44 million the department spends on nursing homes out of the Medicaid program is state money. The department needs tools to regulate the growth and expenditure of the nursing home business. He continued, saying the department needs to look at other alternatives for providing that same level of care through assisted living, or through home and community-based waivers. DHSS runs the waiver program in conjunction with the DOA. Home and community-based care can be provided for significantly less expenditure than nursing home care. Number 426 SENATOR WILKEN asked Mr. Livey to explain the effect of the two- year moratorium on the Certificate of Need. MR. LIVEY said that two years ago the Legislature placed a two- year moratorium on the development of nursing home beds. The intent was to stop the growth of nursing home beds to let the more efficient and less expensive community based care system develop, including the building of more assisted living homes and expansion of the home and community-based waiver. It was fairly successful over the 2-year period. In 1998, about 143,000 patient days were provided through the home and community- based care system. These patient days included the provision of nutritional meals or a nurse visiting the home. Now, around 160,000 patient days are provided through the nursing homes, about equalizing the two different services. However, the 143,000 patient days cost the Medicaid program about $6.5 million, whereas the 160,000 patient days in institutions cost the Medicaid program about $44 million. The moratorium is now off. Where families have a choice, some feel the nursing home is the best care provider, while others like the community options. SENATOR ELTON asked if the department might never issue a Certificate of Need, if a criteria is cost-effectiveness. MR. LIVEY replied it is just one of the criteria that include accessibility and need. If there is consistently a waiting list for nursing home care, that would still be a criteria considered in the decision. SENATOR ELTON assumed there might be a demand, due to the two- year moratorium. MR. LIVEY stated that since it ended last September, the department has had one certificate pending. Facilities expanding the number of beds but falling below the $1 million threshold don't come to the department for review. Regarding the pending certificate, the department would review whether community-based services are available and the family still prefers the nursing home option; if so, the Medicaid program has an obligation to make it available and pay for that service. SENATOR WILKEN invited Ms. Jane Demmert to comment on the four bills. MS. JANE DEMMERT, Executive Director of the Commission on Aging, expressed the commission's support for the four bills which consider basic infrastructure to help aging residents stay in the state. The commission is now drafting resolutions of support for the bills that will be forwarded to the committee. VICE-CHAIRMAN KELLY announced that the committee will consider a new draft of SB 56 at its next hearing. He noted that CHAIRMAN MILLER intends to take up these bills again on Monday, March 8 and Wednesday, March 10. There being no further business, the meeting adjourned at 2:20 p.m.