04/13/2021 03:00 PM House HEALTH & SOCIAL SERVICES

           HB 103-ASSISTED LIVING HOMES: HOUSE RULES                                                                        
                                                                                                                                
3:51:52 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SNYDER announced  that the next order  of business would                                                               
be  HOUSE BILL  NO.  103, "An  Act relating  to  house rules  for                                                               
assisted living  homes."  She  noted the  bill is from  the House                                                               
Rules Standing Committee by request of the governor.                                                                            
                                                                                                                                
3:53:02 PM                                                                                                                    
                                                                                                                                
JOHN LEE,  Director, Division of Senior  and Disability Services,                                                               
Department  of Health  and Social  Services (DHSS),  presented HB
 on behalf of the  House Rules Standing Committee, sponsor, by                                                               
request  of the  governor.   He stated  that the  bill is  needed                                                               
because  Alaska's statutes  are  not in  compliance with  federal                                                               
regulations  which  require  home  and  community-based  services                                                               
(HCBS)  providers to  give people  who  are on  waivers the  same                                                               
access to  the community as people  who are not on  waivers.  The                                                               
term waiver,  he explained, refers  to the federal  programs that                                                               
allow people who  would otherwise be in an institution  at a much                                                               
higher  cost   the  opportunity  to  live   in  non-institutional                                                               
settings such as an assisted living facility.                                                                                   
                                                                                                                                
MR.  LEE said  [Alaska]  state law  allows  that assisted  living                                                               
homes may establish house rules  that address residents' right to                                                               
have visitors.  While [Alaska] statute  says the rules may not be                                                               
unusually  restrictive  the  federal regulations  are  much  more                                                               
explicit,  stating  that  individuals  on  waivers  and  in  such                                                               
settings  are able  to have  visitors  of their  choosing at  any                                                               
time.    Although  Alaska  received  initial  approval  from  the                                                               
federal  government  for its  plan  to  bring its  settings  into                                                               
compliance, this  approval was contingent  on the  state revising                                                               
its statutes to reflect this  federal statute.  Ongoing financial                                                               
participation  in  the state's  waiver  programs  by the  federal                                                               
government  is reliant  on services  being provided  in compliant                                                               
settings.  Without this amendment  to state statutes, the federal                                                               
government's match is jeopardized.                                                                                              
                                                                                                                                
MR. LEE explained that HB 103  addresses this need by proposing a                                                               
simple  insertion  of  language  into the  assisted  living  home                                                               
statute  that would  bring  the state  into  compliance with  the                                                               
Centers  for  Medicare  and  Medicaid  Services  (CMS)  home  and                                                               
community-based setting requirement,  protecting Alaska's federal                                                               
share of  Medicaid payments for  home and  community-based waiver                                                               
services.  The  bill would ensure that  recipients of residential                                                               
waiver services  will be able  to live under conditions  that are                                                               
as much like the person's home as possible.                                                                                     
                                                                                                                                
MR. LEE  stated that HB  103 would impact  Alaska's approximately                                                               
700 assisted  living homes, which  would be required to  abide by                                                               
the conditions defined  in the bill.  The  new statutory language                                                               
would afford all residents living  in an assisted living home the                                                               
same rights  regardless of whether  the home accepts  Medicaid as                                                               
payment or  not.   Over 650  of the  homes are  already compliant                                                               
with the  conditions set forth  in this legislation  because they                                                               
have been  certified to operate  home and  community-based waiver                                                               
services under these conditions.                                                                                                
                                                                                                                                
MR. LEE noted that there is  a timeline - all states are required                                                               
by the  federal government  to be  compliant by  March 2023.   He                                                               
further noted that there is zero fiscal impact for the bill.                                                                    
                                                                                                                                
3:56:12 PM                                                                                                                    
                                                                                                                                
MR. LEE  provided the sectional analysis  for HB 103.   He stated                                                               
that Section 1  would amend Alaska Statute  (AS) 47.33.060, House                                                               
Rules   for  Assisted   Living  Homes,   to  explicitly   require                                                               
consistency  with   federal  regulation  when  house   rules  are                                                               
established.    He explained  that  Section  2  would add  a  new                                                               
section for assisted living homes  to make explicit that assisted                                                               
living homes  that provide  waiver services  may not  adopt house                                                               
rules inconsistent with  federal regulations.  He  said Section 3                                                               
carries  the  statutory  amendments  proposed in  Section  1  and                                                               
Section 2 of  the bill to AS 47.33.300(a)  regarding a resident's                                                               
rights to have visitors.                                                                                                        
                                                                                                                                
3:57:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KURKA  asked whether these new  requirements would                                                               
have to  be followed by an  assisted living home or  private home                                                               
that is outside of state or federal government assistance.                                                                      
                                                                                                                                
MR. LEE  replied that of  the 700  homes operating in  Alaska and                                                               
licensed  by the  state, only  about 50  do not  currently accept                                                               
waiver payments funds.   He pointed out that  all facilities must                                                               
be compliant  with federal statutes,  and HB 103 would  ask those                                                               
50 facilities  that are not  participating in waiver  programs to                                                               
also be compliant.                                                                                                              
                                                                                                                                
REPRESENTATIVE KURKA  referred to Section  2 and asked  why these                                                               
"strings" should apply to homes that do not receive funding.                                                                    
                                                                                                                                
MR. LEE  responded that  it is  for consistency  and to  not have                                                               
separate requirements  depending on  who is  the payer,  and that                                                               
all individuals  be treated  with the  same dignity  and respect.                                                               
He deferred to Mr. Craig Baxter to further answer the question.                                                                 
                                                                                                                                
3:59:56 PM                                                                                                                    
                                                                                                                                
CRAIG  BAXTER, Program  Manager,  Residential Licensing  Section,                                                               
Division  of  Health  Care Services,  Department  of  Health  and                                                               
Social Services  (DHSS), answered the  question on behalf  of the                                                               
House Rules  Standing Committee by  request of the governor.   He                                                               
concurred with Mr.  Lee's answer.  He said many  of the residents                                                               
are private pay and not  participating in the home and community-                                                               
based waiver  program.   In addition, many  of the  50 facilities                                                               
that  are  not  currently  waiver certified  will  become  waiver                                                               
certified in the future as many  of them are in their provisional                                                               
year  of  licensure  and have  not  completed  the  certification                                                               
process.  It  is to have facilities consistent,  he continued, so                                                               
that the  expectation is  the same  for visitation  regardless of                                                               
where a person lives if he or  she is in an assisted living home.                                                               
Residents  can  receive  visitors  of their  choosing  when  they                                                               
choose in whatever facility they  live, just like people who live                                                               
in their personal residences.                                                                                                   
                                                                                                                                
4:00:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MCCARTY  asked whether federal  investigations are                                                               
conducted on homes that are  not consistent.  He further inquired                                                               
about what  is going on that  Alaska is paying back  money to the                                                               
federal government for noncompliance.                                                                                           
                                                                                                                                
MR. LEE replied  that HB 103 does not directly  address fraud and                                                               
abuse.  He  deferred to Mr. Baxter and Ms.  Lynne Keilman-Cruz to                                                               
talk about the department's programs  that ensure fraud and abuse                                                               
are eliminated wherever found.                                                                                                  
                                                                                                                                
4:01:48 PM                                                                                                                    
                                                                                                                                
LYNNE  KEILMAN-CRUZ, Chief  of Quality,  Division  of Senior  and                                                               
Disabilities Services,  Department of Health and  Social Services                                                               
(DHSS),  answered  the question  on  behalf  of the  House  Rules                                                               
Standing Committee,  sponsor, by  request of  the governor.   She                                                               
said  the department  is required  by the  federal government  to                                                               
comply with  the settings rule  for Alaska's home  and community-                                                               
based  waivers.   In conjunction  with the  Residential Licensing                                                               
Section  the  [Division  of  Senior  and  Disabilities  Services]                                                               
conducts  the  settings  evaluations   to  make  sure  folks  are                                                               
complying.  All  the current residential homes  have gone through                                                               
a settings evaluation  and found in compliance with  the rules as                                                               
they are stated  now.  She said she assumes  the same would apply                                                               
for  folks  who are  coming  into  [the division's]  services  or                                                               
becoming  certified.    For  those private  homes  that  are  not                                                               
certified,  the federal  rule doesn't  apply, but  if it  were to                                                               
become a law and a regulation  then the state's rules would apply                                                               
for that as well.                                                                                                               
                                                                                                                                
REPRESENTATIVE MCCARTY  inquired whether  homes that do  not have                                                               
waivered individuals would have to comply with something anyway.                                                                
                                                                                                                                
MS.  KEILMAN-CRUZ responded  that  it is  to  be consistent  with                                                               
licensing rules and it also a  very basic human element for folks                                                               
to be able to  have visitors of their choosing in  the home.  So,                                                               
it  is a  federal settings  rule, but  it is  an important  human                                                               
decency rule.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MCCARTY acknowledged  the respect  of someone  to                                                               
bring anyone or  groups of people into their home  24/7, but said                                                               
he  is thinking  of a  senior "John  Belushi Animal  House."   He                                                               
asked  how it  plays  out  when the  choices  of  one person  are                                                               
intruding on the choices of others.                                                                                             
                                                                                                                                
MS. KEILMAN-CRUZ  deferred to  the Residential  Licensing Section                                                               
to respond to the question.                                                                                                     
                                                                                                                                
4:05:02 PM                                                                                                                    
                                                                                                                                
MR.  BAXTER answered  that this  new  rule would  not prohibit  a                                                               
facility from  having reasonable  expectations that  visitors and                                                               
guests are  not disruptive.   For  example, the  expectation that                                                               
they  would follow  any specified  quiet hours  in the  home, and                                                               
that they  are not  up late being  loud, disruptive,  violent, or                                                               
verbally abusive.  Any of  those things could still be restricted                                                               
by  the facility.   If  a resident  continued to  have disruptive                                                               
people over, those  individuals could be asked to  leave if there                                                               
is a documented pattern of disruption.   Or, if the people coming                                                               
over were  unsafe, [the resident's]  treatment team  and guardian                                                               
or  care  coordinator could  work  with  the facility  on  having                                                               
restricted  visits.     This  would  be   addressed  within  [the                                                               
resident's] care  plan and there  would have  to be some  sort of                                                               
documentation that  the individuals  are disruptive,  unsafe, and                                                               
impacting  other  people  in  the  facility.    It  would  be  no                                                               
different  than a  facility asking  a parent  who comes  to visit                                                               
with an  unruly child to  refrain from  bringing the child.   The                                                               
division  would  not  look  at  that  as  being  an  unreasonable                                                               
restriction to place on that visitation.                                                                                        
                                                                                                                                
4:06:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ pointed  out that  most group  homes in                                                               
Alaska  are private  regardless of  whether they  accept Medicaid                                                               
funding.   But, she continued,  the people living in  those homes                                                               
have the same rights to  liberty as people who live independently                                                               
and therefore  they should have  the right to have  their friends                                                               
and loved ones  visit them when they like, and  that the resident                                                               
doesn't become a hostage just because  he or she lives in a group                                                               
home.   She concurred that there  is a balancing act  and a party                                                               
at 3:00 a.m. is not a  liberty but rather oppression of others in                                                               
the   household.     Representative   Spohnholz  referenced   the                                                               
recommendations made in  the annual report of  Alaska's Office of                                                               
Long   Term  Care   Ombudsman  for   10/1/20199/30/2020.      The                                                               
recommendations, she related, include the  right to access to the                                                               
internet, the  right to  receive information  in a  language that                                                               
the resident  understands, the  right to  receive meals  that are                                                               
culturally  preferred, and  the  right to  live  without fear  of                                                               
reprisal or  retaliation.   She asked whether  any of  these were                                                               
considered when drafting HB 103 and, if not, why not.                                                                           
                                                                                                                                
MR. LEE replied that adding  additional requirements was debated.                                                               
However, he  continued, ensuring  that the  requirements outlined                                                               
in the  Code of  Federal Regulations  (C.F.R.) was  wanted, along                                                             
with  not  overly  complicating   the  bill  given  its  critical                                                               
importance to  ensuring that the  state continues to  be eligible                                                               
to  receive  the  funding  through  its  waiver  programs.    The                                                               
foremost  priority  was to  ensure  that  [the state's]  settings                                                               
rules were  compliant with 42  CFR and  so that was  the strategy                                                               
chosen.                                                                                                                         
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ inquired whether  the department has any                                                               
objection to adding some of those recommendations.                                                                              
                                                                                                                                
MR.  LEE responded  that the  department would  be happy  for any                                                               
friendly amendments.                                                                                                            
                                                                                                                                
4:10:10 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SNYDER opened public testimony on HB 103.                                                                              
                                                                                                                                
4:10:25 PM                                                                                                                    
                                                                                                                                
MICHAEL  GARVEY,  Advocacy  Director,  American  Civil  Liberties                                                               
Union  (ACLU) of  Alaska, testified  in support  of HB  103.   He                                                               
stated that ACLU of Alaska  is committed to furthering the rights                                                               
and  dignity of  people with  disabilities who  live in  assisted                                                               
living  facilities.   He said  his organization  supports HB  103                                                               
because it will bring the  state into compliance with the federal                                                               
government's  home and  community-based  services settings  rule.                                                               
One of  the rule's core  goals, he  continued, is to  ensure that                                                               
federal funding  for home and  community-based services  flows to                                                               
settings that promote true community  integration for people with                                                               
disabilities and elder Americans.   Institutional settings pose a                                                               
great risk  to the physical  and mental well-being  of residents,                                                               
limit their autonomy, and isolate them from broader society.                                                                    
                                                                                                                                
MR. GARVEY said ACLU of  Alaska is expressing its support because                                                               
people with disabilities deserve the  same right to make choices,                                                               
access  the broader  community, and  interact with  the world  as                                                               
anyone else.   Through a simple statutory fix, HB  103 would help                                                               
ensure that residents of any  assisted living facility are living                                                               
in  conditions  that  uphold  their  privacy,  dignity,  respect,                                                               
agency, and  visitation.  He  added that ACLU of  Alaska endorses                                                               
the  recommendations provided  by  Alaska's Office  of Long  Term                                                               
Care  Ombudsman,  which  would  further promote  the  dignity  of                                                               
assisted  living  facility residents  and  ensure  that they  are                                                               
connected to the community.                                                                                                     
                                                                                                                                
4:12:19 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  SNYDER closed  public testimony  after ascertaining  no                                                               
one else wished to testify.                                                                                                     
                                                                                                                                
CO-CHAIR SNYDER stated that HB 103 was held over.