CSHB 124(HES): "An Act relating to criminal background checks that must be performed by nursing facilities and assisted living homes; prohibiting nursing facilities from employing persons with certain criminal backgrounds; prohibiting assisted living homes from employing or allowing the residence of persons with certain criminal backgrounds, with exceptions; relating to liability for acts or omissions in the licensing, monitoring, or supervision of assisted living homes; relating to assisted living homes and nursing facilities; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 124(HES) 01 "An Act relating to criminal background checks that must be performed by nursing 02 facilities and assisted living homes; prohibiting nursing facilities from employing 03 persons with certain criminal backgrounds; prohibiting assisted living homes from 04 employing or allowing the residence of persons with certain criminal backgrounds, with 05 exceptions; relating to liability for acts or omissions in the licensing, monitoring, or 06 supervision of assisted living homes; relating to assisted living homes and nursing 07 facilities; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 18.20.302 is amended to read: 10 Sec. 18.20.302. Criminal background check [FOR EMPLOYEES]. (a) A 11 nursing facility may not employ an individual, including an administrator [IN A 12 PAID POSITION THAT THE DEPARTMENT HAS DETERMINED IS COVERED 13 BY THIS SECTION, ACCORDING TO ITS REGULATIONS], unless the individual,
01 before beginning employment, 02 (1) provides to the facility a sworn statement as to whether the 03 individual has been convicted of an offense described in (c) of this section or of an 04 offense in which the victim was a resident of a nursing facility or assisted living 05 home at the time of the offense; in this paragraph, "assisted living home" means 06 an entity required to be licensed under AS 47.33 or an entity located outside the 07 state that would be required to be licensed under AS 47.33 if it were located 08 inside the state; 09 (2) provides to the facility the results of a name-check criminal 10 background investigation that was completed by the Department of Public Safety no 11 more than 30 days before the individual begins employment [IS HIRED]; and 12 (3) submits to the facility two full sets of the individual's fingerprints. 13 (b) Within 30 days after employing an individual [AN INDIVIDUAL IN A 14 PAID POSITION], a nursing facility shall submit to the Department of Public Safety 15 the fingerprints obtained under (a)(3) of this section. The Department of Public Safety 16 shall submit the fingerprints to the Federal Bureau of Investigation for a national 17 criminal history record check and shall provide the results to the Department of 18 Health and Social Services. When the results are received, the Department of 19 Health and Social Services [DEPARTMENT] shall advise the facility of 20 [(1) THE DATE ON WHICH THE FINGERPRINT BACKGROUND 21 CHECK WAS COMPLETED; AND 22 (2)] whether the check shows that the individual has committed an 23 offense described in (c) of this section. 24 (c) A nursing facility may not employ an individual [HIRE OR RETAIN AN 25 EMPLOYEE] who has been convicted 26 (1) of an unclassified felony, a class A felony, or an offense under 27 the laws of another jurisdiction that would have been, if it had been committed in 28 this state at that time, an unclassified felony or class A felony; 29 (2) under AS 11.51.200 or 11.51.210 or of a criminal offense in 30 another jurisdiction with elements substantially similar to the elements of an 31 offense under AS 11.51.200 or 11.51.210;
01 (3) within the previous 10 years, of a class B felony or an offense 02 under the laws of another jurisdiction that would have been, if it had been 03 committed in this state at that time, a class B felony; 04 (4) within the previous five years, of a class C felony, an offense 05 under AS 11.56.840 or AS 11.61.130, or an offense under the laws of another 06 jurisdiction that would have been, if it had been committed in this state at that 07 time, a class C felony or an offense under AS 11.56.840 or AS 11.61.130; or 08 (5) of an offense listed in the department's regulations as being an 09 offense for which an individual should be prohibited access to a nursing facility 10 [COVERED BY THIS SECTION]. 11 * Sec. 2. AS 18.20.302 is amended by adding a new subsection to read: 12 (d) A nursing facility administrator shall provide safeguards to ensure that 13 contractors, volunteers, new employees who were nonresidents of the state at the time 14 they were initially hired, and other persons entering the nursing facility do not abuse, 15 neglect, or exploit a resident of the facility. 16 * Sec. 3. AS 47.33.010(a) is amended to read: 17 (a) Except as provided in (b) of this section, this chapter applies to residential 18 facilities operated in the state that serve three or more adults who are not related to the 19 owner of the facility by blood or marriage and to residential facilities in the state 20 that receive state or federal payment for services, regardless of the number of 21 adults that the facility serves. The department shall consider a facility as a 22 residential facility if the facility [BY] 23 (1) provides [PROVIDING] housing and food service to its residents; 24 and 25 (2) provides [PROVIDING] or obtains [OBTAINING], or offers 26 [OFFERING] to provide or obtain, for its residents 27 (A) assistance with the activities of daily living; 28 (B) personal assistance; or 29 (C) a combination of services under (A) and (B) of this 30 paragraph. 31 * Sec. 4. AS 47.33.100 is amended to read:
01 Sec. 47.33.100. Criminal background checks [CHECK FOR 02 EMPLOYEES]. (a) An assisted living home may not employ or allow to reside in 03 the home an individual, including an administrator [IN A PAID POSITION THAT 04 THE APPLICABLE LICENSING AGENCY HAS DETERMINED IS COVERED 05 BY THIS SECTION, ACCORDING TO ITS REGULATIONS], unless the individual, 06 before beginning employment or residence in the home, 07 (1) provides to the home a sworn statement as to whether the 08 individual has been convicted of an offense described in (c) of this section or of an 09 offense in which the victim was a resident of a nursing facility or assisted living 10 home at the time of the offense; in this paragraph, 11 (A) "assisted living home" means an entity required to be 12 licensed under this chapter or an entity located outside the state that 13 would be required to be licensed under this chapter if it were located in 14 the state; 15 (B) "nursing facility" has the meaning given in 16 AS 18.20.390; [AND] 17 (2) provides to the home the results of a name-check criminal 18 background investigation that was completed by the Department of Public Safety no 19 more than 30 days before the individual begins employment or residence in the 20 home [IS HIRED]; and 21 (3) submits to the home two full sets of the individual's fingerprints. 22 (b) Within 30 days after employing or allowing an individual to reside in 23 the home [AN INDIVIDUAL IN A PAID POSITION], an assisted living home shall 24 submit to the Department of Public Safety the fingerprints obtained under (a)(3) of this 25 section. The Department of Public Safety shall submit the fingerprints to the Federal 26 Bureau of Investigation for a national criminal history record check and shall provide 27 the results to the applicable licensing agency. When the results are received, the 28 applicable licensing agency [DEPARTMENT] shall advise the home of 29 [(1) THE DATE ON WHICH THE FINGERPRINT BACKGROUND 30 CHECK WAS COMPLETED; AND 31 (2)] whether the check shows that the individual has committed an
01 offense described in (c) of this section. 02 (c) An assisted living home may not employ or allow to reside in the home 03 an individual [HIRE OR RETAIN AN EMPLOYEE] who has been convicted 04 (1) of an unclassified felony, a class A felony, or an offense under 05 the laws of another jurisdiction that would have been, if it had been committed in 06 this state at that time, an unclassified felony or class A felony; 07 (2) under AS 11.51.200 or 11.51.210 or of a criminal offense in 08 another jurisdiction with elements substantially similar to the elements of an 09 offense under AS 11.51.200 or 11.51.210; 10 (3) within the previous 10 years, of a class B felony or an offense 11 under the laws of another jurisdiction that would have been, if it had been 12 committed in this state at that time, a class B felony; 13 (4) within the previous five years, of a class C felony, an offense 14 under AS 11.56.840 or AS 11.61.130, or an offense under the laws of another 15 jurisdiction that would have been, if it had been committed in this state at that 16 time, a class C felony or an offense under AS 11.56.840 or AS 11.61.130; or 17 (5) of an offense listed in the regulations of the applicable licensing 18 agency as being an offense for which an individual should be prohibited access to 19 an assisted living home; in this paragraph, "assisted living home" has the 20 meaning given in (a)(1)(A) of [COVERED BY] this section. 21 * Sec. 5. AS 47.33.100 is amended by adding new subsections to read: 22 (d) This section does not apply to an individual 23 (1) who is a resident of the assisted living home and is receiving 24 residential services from the home under a contract made under this chapter; 25 (2) residing in the assisted living home who is under 16 years of age; 26 or 27 (3) who is not a care provider and who is 28 (A) residing in the home for less than 14 days in a calendar 29 year; and 30 (B) in the close physical proximity of the staff of the assisted 31 living home while visiting.
01 (e) The administrator of an assisted living home shall provide safeguards to 02 ensure that contractors, volunteers, new employees who were nonresidents of the state 03 at the time they were initially hired, and other persons entering the home do not abuse, 04 neglect, or exploit a resident of the home. 05 * Sec. 6. AS 47.33.300(a) is amended to read: 06 (a) Subject to (c) of this section, a resident of an assisted living home has the 07 right to 08 (1) live in a safe and sanitary environment; 09 (2) be treated with consideration and respect for personal dignity, 10 individuality, and the need for privacy, including privacy in 11 (A) a medical examination or health-related consultation; 12 (B) the resident's room or portion of a room; 13 (C) bathing and toileting, except for any assistance in those 14 activities that is specified in the resident's assisted living plan; and 15 (D) the maintenance of personal possessions and the right to 16 keep at least one cabinet or drawer locked; 17 (3) possess and use personal clothing and other personal property, 18 unless the home can demonstrate that the possession or use of certain personal 19 property would be unsafe or an infringement of the rights of other residents; 20 (4) engage in private communications, including 21 (A) receiving and sending unopened correspondence; 22 (B) having access to a telephone, or having a private telephone 23 at the resident's own expense; and 24 (C) visiting with persons of the resident's choice, subject to 25 visiting hours established by the home; 26 (5) close the door of the resident's room at any time, including during 27 visits in the room with guests or other residents; 28 (6) at the resident's own expense unless otherwise provided in the 29 residential services contract, participate in and benefit from community services and 30 activities to achieve the highest possible level of independence, autonomy, and 31 interaction with the community;
01 (7) manage the resident's own money; 02 (8) participate in the development of the resident's assisted living plan; 03 (9) share a room with a spouse if both are residents of the home; 04 (10) have a reasonable opportunity to exercise and to go outdoors at 05 regular and frequent intervals, when weather permits; 06 (11) exercise civil and religious liberties; 07 (12) have access to adequate and appropriate health care and health 08 care providers of the resident's own choosing, consistent with established and 09 recognized standards within the community; 10 (13) self-administer the resident's own medications, unless specifically 11 provided otherwise in the resident's assisted living plan; 12 (14) receive meals that are consistent with religious or health-related 13 restrictions; 14 (15) receive the prior notice of relocation of the home or the home's 15 intent to terminate the residential services contract of the resident required by 16 AS 47.33.080, [AND] 47.33.360, and 47.33.370 [RESPECTIVELY]; 17 (16) present to the home grievances and recommendations for change 18 in the policies, procedures, or services of the home; 19 (17) at the resident's own expense unless otherwise provided in the 20 residential services contract, have access to and participate in advocacy or special 21 interest groups; 22 (18) at the resident's own expense unless otherwise provided in the 23 residential services contract, intervene or participate in, or refrain from participating 24 in, adjudicatory proceedings held under this chapter, unless provided otherwise by 25 other law; and 26 (19) reasonable access to home files relating to the resident, subject to 27 the constitutional right of privacy of other residents of the home. 28 * Sec. 7. AS 47.33.360(a) is amended to read: 29 (a) An assisted living home may not terminate a residential services contract 30 with a resident of the home against the resident's will, except as provided in 31 AS 47.33.370 or unless
01 (1) the resident engages [FOR MEDICAL REASONS; 02 (2) FOR ENGAGING] in a documented pattern of conduct that is 03 harmful to the resident, other residents, or staff of the home; 04 (2) the resident violates [(3) FOR VIOLATION OF] the terms of the 05 residential services contract, including failure to pay costs incurred under the contract; 06 (3) [(4) WHEN EMERGENCY TRANSFER OUT OF THE HOME IS 07 ORDERED BY THE RESIDENT'S PHYSICIAN; 08 (5) WHEN] the home is closing; or 09 (4) [(6) WHEN] the home can no longer provide or arrange for 10 services in accordance with the resident's needs and the resident's assisted living plan. 11 * Sec. 8. AS 47.33.360(b) is amended to read: 12 (b) At least 30 days before terminating the residential services contract with a 13 resident under [(a)(2), (3), (5), OR (6) OF] this section, the assisted living home shall 14 provide written notice of the proposed contract termination to the resident or the 15 resident's representative, [AND TO] the resident's service coordinator, if any, the 16 applicable licensing agency, and the long-term care ombudsman. The notice must 17 state the 18 (1) basis for the termination; and 19 (2) resident's right to contest the termination in the manner provided in 20 the contract, which must include an offer by the home to participate in a case 21 conference as described in (c) of this section. 22 * Sec. 9. AS 47.33.360(c) is amended to read: 23 (c) Before terminating the residential services contract with a resident under 24 [(a)(2), (3), (5), OR (6) OF] this section, the assisted living home shall participate in a 25 case conference if requested by the resident or the resident's representative. The case 26 conference must include the resident, the resident's representative, if any, the resident's 27 advocate, if any, the resident's service coordinator, if any, the home administrator, and 28 appropriate care providers who shall [MAY] discuss the justification for, and the 29 appropriateness of, the contract termination. 30 * Sec. 10. AS 47.33 is amended by adding a new section to article 3 to read: 31 Sec. 47.33.370. Emergency involuntary termination of contract. (a) An
01 assisted living home may terminate a residential services contract with a resident of 02 the home against the resident's will and with less than 30 days' notice if at least one of 03 the following emergency reasons exists and is supported by written documentation in 04 the resident's file in the home: 05 (1) a medical reason; 06 (2) an emergency transfer from the home is ordered by the resident's 07 physician; 08 (3) imminent danger to the resident or others in the home because the 09 home is unable to meet the resident's needs or assure the health and safety of others, 10 for purposes of this paragraph, "imminent danger to the resident or others" includes 11 imminent danger 12 (A) to the resident caused by the resident's self-destructive 13 behavior; and 14 (B) of serious physical assault by the resident; 15 (4) the intentional damage or destruction of property in excess of $300. 16 (b) A resident's refusal or failure to take prescribed medication or otherwise 17 follow the resident's assisted living plan does not constitute a medical or other reason 18 for emergency involuntary termination of a residential services contract unless the 19 resident's conduct constitutes a reason for termination under (a)(3) or (4) of this 20 section. 21 (c) An assisted living home that proposes to terminate a residential services 22 contract for any reason listed in (a) of this section shall provide written notice of the 23 proposed contract termination not less than 72 hours before termination to the resident, 24 the resident's representative, if any, the resident's service coordinator, if any, the 25 applicable licensing agency, and the long-term care ombudsman. If the resident does 26 not have a service coordinator, notice under this subsection shall also be given to adult 27 protective services personnel of the Department of Administration. The notice must 28 state the following: 29 (1) the reason under (a) of this section for the proposed termination of 30 the residential services contract and the specific facts on which proposed termination 31 is based;
01 (2) the alternatives to termination of the residential contract that have 02 been attempted by the home; 03 (3) the location to which the resident will be discharged, if known; 04 (4) the date and time proposed for termination of the contract and 05 discharge of the resident; 06 (5) the resident's right to request a case conference that must be held, if 07 requested, before termination of the contract. 08 (d) After the notice is provided under (c) of this section, the assisted living 09 home shall participate in a case conference if requested by the resident, the resident's 10 representative, if any, the resident's advocate, if any, or the resident's service 11 coordinator, if any. If the resident does not have a service coordinator and a case 12 conference is requested by the resident or the resident's representative or advocate, 13 adult protective services personnel assigned by the Department of Administration shall 14 be requested by the assisted living home to participate in the conference. If the 15 request for a case conference is received before termination of the resident's contract, 16 the assisted living home may not terminate the contract until the case conference has 17 been held. A case conference requested under this subsection shall be held by the 18 assisted living home within 72 hours of the request and must include the resident, the 19 resident's representative, if any, the resident's advocate, if any, the home administrator, 20 and appropriate care providers who shall discuss the justification for, and the 21 appropriateness of, the proposed contract termination. 22 * Sec. 11. AS 47.33.410 is amended by adding a new subsection to read: 23 (g) A licensing agency under (a) and (b) of this section, its officers, its 24 employees, and the state are not liable for civil damages as a result of an act or 25 omission in the licensing, monitoring, or supervision of an assisted living home under 26 this chapter. This subsection does not preclude liability for civil damages as a result 27 of gross negligence or reckless or intentional misconduct. 28 * Sec. 12. AS 47.33.550(a) is amended to read: 29 (a) A licensing agency may revoke an assisted living home license, deny 30 renewal of an assisted living home license, suspend operations of an assisted living 31 home, suspend the ability of an assisted living home to take in new residents, place
01 conditions on the ability of an assisted living home to take in new residents, restrict 02 the type of care that an assisted living home may provide to residents, or assess an 03 administrative fine, as the agency considers appropriate, on one or more of the 04 following grounds: 05 (1) a violation of a provision of this chapter, a regulation adopted 06 under this chapter, an order in a notice of violation issued under this chapter, or a term 07 of a license issued under this chapter; 08 (2) a criminal conviction of an administrator of an assisted living home 09 if the conviction is 10 (A) for an offense involving a resident of the home; 11 (B) a felony; [OR] 12 (C) a misdemeanor involving alcohol, a controlled substance, 13 an imitation controlled substance, or physical or sexual abuse; or 14 (D) an offense described in AS 47.33.100(c); 15 (3) obtaining, retaining, or attempting to obtain or retain a license 16 under this chapter by fraud or misrepresentation. 17 * Sec. 13. AS 47.33.550(f) is amended to read: 18 (f) If an assisted living home requests a hearing under (d) of this section, the 19 hearing shall be held within 120 [60] days after the licensing agency receives the 20 request. The department's decision following a hearing under this section is a final 21 administrative order. 22 * Sec. 14. AS 47.33.550 is amended by adding new subsections to read: 23 (j) A licensing agency may summarily suspend operations of an assisted living 24 home before a final hearing is held or during an appeal if the licensing agency finds 25 that the home poses a clear and imminent danger to the public health and safety. The 26 assisted living home is entitled to a hearing before the licensing agency to appeal the 27 summary suspension within 10 days after the order of suspension is issued. To 28 request a hearing, the assisted living home must notify the licensing agency of the 29 request within 24 hours, excluding weekends and holidays, after the order of 30 suspension was received. The assisted living home may appeal, to a court of 31 competent jurisdiction, an adverse decision of the licensing agency on an appeal of a
01 summary suspension. 02 (k) If a license is suspended or revoked under this section, the facility may not 03 be operated or maintained as an assisted living home and may not house or provide 04 assisted living services to a facility resident. 05 * Sec. 15. AS 47.33 is amended by adding a new section to read: 06 Sec. 47.33.563. Court-ordered temporary administration and 07 receivership. (a) If the licensing agency determines that the health or safety of the 08 residents of an assisted living home is imminently jeopardized as the result of the 09 assisted living home's failure or refusal to comply with a state or federal statute or 10 regulation or local ordinance, the licensing agency may petition the superior court for 11 an order for appointment of temporary administration to oversee the operation of the 12 assisted living home in order to ensure the health and safety of the residents of the 13 assisted living home while orderly closure of the assisted living home occurs or the 14 deficiencies necessitating temporary administration are corrected. 15 (b) The licensing agency may petition the superior court for establishment of a 16 receivership for an assisted living home if the licensing agency finds that one of the 17 following conditions exists and the owner, operator, or administrator of the home has 18 demonstrated an inability or unwillingness to take action necessary to immediately 19 correct the following alleged conditions: 20 (1) the assisted living home is operating without a license; 21 (2) the health, safety, or welfare of the residents of the assisted living 22 home is imminently jeopardized; 23 (3) the assisted living home demonstrates a pattern and practice of 24 violating state or federal statutes or regulations or local ordinances in such a way that 25 care of residents is jeopardized. 26 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 APPLICABILITY. (a) AS 18.20.302, as amended by secs. 1 and 2 of this Act, 29 applies to persons employed by a nursing home on or after July 1, 2001, except that the 30 offenses described in AS 18.20.302(a)(1) and (c) include offenses committed before, on, or 31 after July 1, 2001.
01 (b) AS 47.33.100, as amended by secs. 4 and 5 of this Act, applies to employment and 02 allowing the residence of an individual in an assisted living home on or after July 1, 2001, 03 except that the offenses described in AS 47.33.100(a)(1) and (c), as amended by sec. 4 of this 04 Act, include offenses committed before, on, or after July 1, 2001. 05 (c) AS 47.33.410(g), added by sec. 11 of this Act, applies to acts or omissions 06 occurring on or after July 1, 2001. 07 (d) AS 47.33.550(a), as amended by sec. 12 of this Act, applies to an individual 08 employed as an administrator of an assisted living home on or after July 1, 2001, except that 09 the offenses described in AS 47.33.550(a)(2)(D) include offenses committed before, on, or 10 after July 1, 2001. 11 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 TRANSITION: REGULATIONS. Notwithstanding sec. 19 of this Act, the 14 Department of Administration and the Department of Health and Social Services may 15 immediately proceed to adopt regulations necessary to implement the changes made by this 16 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 17 before July 1, 2001. 18 * Sec. 18. Section 17 of this Act takes effect immediately under AS 01.10.070(c). 19 * Sec. 19. Except as provided in sec. 18 of this Act, this Act takes effect July 1, 2001.