Legislature(1999 - 2000)

03/03/1999 01:35 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                                          
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                                                               
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                                                               
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                                                                        
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                                                                      
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                                                                 
SENATOR WILKEN invited Ms. Jane Demmert to comment on the four                                                                  
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.                                                                                                  

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