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 103 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.