SB 89-ASSISTED LIVING HOMES: HOUSE RULES  3:40:07 PM CO-CHAIR SNYDER announced that the next order of business would be CS FOR SENATE BILL NO. 89(FIN), "An Act relating to house rules for assisted living homes." She noted that CSSB 89(FIN) is the companion bill to HB 103, which the committee heard on 4/13/21. 3:40:54 PM JOHN LEE, Director, Anchorage Office, Division of Senior and Disabilities Services, Department of Health and Social Services (DHSS), presented CSSB 89(FIN) on behalf of the House Rules Committee by request of the governor. He spoke from a document titled, "SB 89 Assisted Living Homes; House Rules ONE PAGE SUMMARY." He stated that the bill is needed because Alaska's statutes are not in compliance with federal regulations that require home and community-based service providers to give people who are on waivers the same access to the community as people who are not on waivers. For example, state law allows that an assisted living home may establish house rules that address a resident's rights to have visitors. MR. LEE pointed out that while state statute says the rules may not be unusually restrictive, the federal regulation is 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, he advised, the approval was contingent on the state revising its statute 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 the state statute the federal government match is in jeopardy. MR. LEE explained that the bill proposes a simple insertion of language into the Assisted Living Homes Statutes [AS 47.33] that will bring the state into compliance with the Centers for Medicare and Medicaid Services (CMS) home and community-based settings requirements, thereby protecting Alaska's federal share of [Medicaid] payments for home and community-based [waiver] services. The bill ensures that [recipients] of residential [waiver] services will be able to live under conditions that are as much like a person's home as possible. MR. LEE addressed who would be impacted by the bill. He related that Alaska's approximately 700 assisted living homes would be required to abide by the conditions defined in the bill. The new statutory language would afford all residents living in assisted living homes the same rights, regardless of whether the home accepts Medicaid as payment. Over 650 homes are already in compliance with these conditions because they are certified to operate home and community-based waiver services under these conditions. MR. LEE reviewed the timeline [for compliance]. He stated that CMS requires states to have these settings in place by March 2023. He further noted that the fiscal impact is zero. 3:43:43 PM MR. LEE provided a sectional analysis of CSSB 89(FIN). He explained that Section 1 amends AS 47.33.060, House Rules for Assisted Living Homes that Explicitly Require Consistency with Federal Law When House Rules are Established. Section 2 adds a new [subsection] for assisted living homes to make explicit that assisted living homes that provide waiver services may not adopt house rules inconsistent with federal law. Section 3 carries the statutory amendments proposed in Section 1 and Section 2 regarding the resident's right to have visitors. 3:44:29 PM CO-CHAIR ZULKOSKY asked whether there are any significant changes between [CSSB 89(FIN)], the Senate version before the committee, and HB 103, which the committee heard previously. MR. LEE replied that one of the bills has language that addresses the Executive Order (EO) to split the department into two compartments, and the other does not. In further response to Co-Chair Zulkosky, he confirmed that that is the only significant change. 3:45:26 PM REPRESENTATIVE KURKA asked which committee is the bill's next referral. CO-CHAIR SNYDER responded that there is no other committee of referral, so the bill will next go to the House Rules Committee. 3:46:19 PM REPRESENTATIVE MCCARTY moved to adopt Amendment 1 to CSSB 89(FIN), labeled 32-GH1675\A.2, Dunmire, 4/15/21, which read: Page 1, lines 7 - 12: Delete all material and insert:  "* Sec. 2. AS 47.33.060 is amended by adding new subsections to read: (e) An assisted living home shall permit an individual immediate access to a resident without requiring an appointment if the individual visits the resident during the visiting hours established by the home, subject to the resident's consent to receive a visit from the individual. (f) An assisted living home may adopt an appointment system to facilitate visits outside of visiting hours." REPRESENTATIVE SPOHNHOLZ objected for purposes of discussion. REPRESENTATIVE MCCARTY withdrew Amendment 1 so as to not cause conflict with federal rules. 3:47:16 PM REPRESENTATIVE SPOHNHOLZ moved to adopt Amendment 2 to CSSB 89(FIN), labeled 32-GH1675\A.4, Dunmire, 4/28/21, which read: Page 2, line 1, following "environment": Insert "free from abuse and discrimination" Page 2, line 16: Delete "and" Insert "[AND]" Page 2, line 18, following "AS 47.33.060": Insert "; and  (D) reasonable access to the Internet, to  the extent available to the home;" Page 3, line 5, following "with": Insert "cultural preferences and" Page 3, line 11, following "home": Insert "without fear of reprisal or retaliation" Page 3, line 18: Delete "and" Insert "[AND]" Page 3, line 20, following "home": Insert ";  (20) receive information in a language the  resident understands; and  (21) receive quality care" CO-CHAIR ZULKOSKY objected for purposes of discussion. REPRESENTATIVE SPOHNHOLZ explained Amendment 2 would incorporate the following recommendations from Alaska's Office of Long Term Care Ombudsman: that residents be free from abuse and discrimination, that reasonable internet access be ensured to the extent available, that strengthen the rights of residents to submit grievances, that residents can receive cultural preferences with regard to meal preparation along with religious and other health related restrictions, that residents who aren't English proficient receive information in a language they can understand, and that residents can live in the home and file complaints without fear of reprisal and retaliation. She said these recommendations reflect grievances addressed by the ombudsman related to assisted living homes. She drew attention to a letter provided to committee members that the Long Term Care Ombudsman submitted to the committee chair. 3:49:13 PM REPRESENTATIVE PRAX expressed concern that these recommendations are somewhat nebulous and subject to interpretation. It is up to the ombudsman to determine these things, he opined, and it goes without saying that it should be without fear of reprisal or retaliation but saying it can open the door. People in this situation can be obstreperous and the facility must be able to exercise some control; if the facility goes too far then the resident's remedy is to go to the ombudsman. It should be worked out on a case-by-case basis rather than trying to spell it out in statute. REPRESENTATIVE SPOHNHOLZ offered her belief that these would not be too nebulous or ambiguous. She said the average number of residents in an assisted living home in Alaska is three, and they are homes in communities, not large facilities. Although people may need assisted living support, they should still be able to continue having culturally appropriate foods, access to the internet, and to feel safe in the home for which they are paying for a service. The ombudsman can help the department in the regulation drafting process for complying with the statute, and that process would include an opportunity for public comment and for operators of these homes to provide feedback. 3:53:26 PM CO-CHAIR ZULKOSKY stated she would like to hear from the department as to whether the preference is for broad language or prescriptive language to capture the recommendations from the Office of Long Term Care Ombudsman. MR. LEE replied that [the Division of Senior and Disabilities Services] has looked at Amendment 2 and does not believe it would put the division at risk of violating the settings rules. He deferred to Mr. Craig Baxter to answer the question from the perspective of the Division of Health Care Services. CO-CHAIR ZULKOSKY related that she has talked to some constituent groups that run assisted living homes and they welcomed the language in this amendment. She requested confirmation that there would be regulation setting processes that would provide assisted living facilities with the opportunity to respond to this new statute. MR. LEE deferred to Mr. Baxter to answer the question. 3:55:16 PM CRAIG BAXTER, Assisted Living Home Manager, Residential Licensing/Background Check Program, Division of Health Services, Department of Health and Social Services (DHSS), on behalf of the House Rules Committee by request of the governor, answered that it depends on which one of the house rules the amendment addresses. Some of them are fine and the division would be able to enforce with the way the amendment is written; others are too broad, and he would recommend the statute clarify some things more clearly. His concern, he continued, is writing and implementing a regulation package versus addressing it here within the statute within the amendment, which would give a lot more guidance on how to enforce. While he knows how the appeals process goes and what the intent is, he can see [the department] struggling to hold facilities accountable with some of the items. The ombudsman's recommended amendments are great, but some are broad enough that it might be difficult for [the department] with the statute alone to provide quality enforcement without there being a regulation package to clarify and flush those out. REPRESENTATIVE SPOHNHOLZ asked whether she is correct in understanding Mr. Baxter to have said that a regulations package would be needed to define more specifically the details for how to implement Amendment 2. MR. BAXTER replied yes. For example, he said, the "receive quality care" amendment could be taken in many ways, so a definition or flushing out within the amendment would give [the department] some guidelines as to what the intent would be for quality care. The food amendment is fine because the department already has regulations that address food. Regarding the "without fear of reprisal or retaliation" amendment, there are already statutes that address retaliation, but more guidance is needed on the word "fear." This is because someone could interpret the actions of a facility in a way that they would be afraid of reprisal when reprisal or retaliation weren't intended. Must [the department] show that the facility intended to take a reprisal or a retaliatory action against the individual? [The department] would have to come up with a way to define some of those items to be on solid footing for enforcement. The proposed changes are positive and needed, but more clarification would go a long way as far as providing meaningful enforcement. CO-CHAIR SNYDER remarked that she is hearing struggle back and forth between desire to have statute that is prescriptive or statute that is wide enough to give some latitude for appropriate interpretation. 3:59:43 PM REPRESENTATIVE KURKA commented that it looks like clarification is being added on the list of what the rights are of the residents of a home, but others are quite broad, and some seem over the top. He questioned whether "reasonable access to the Internet" is a right and whether it is a cost that should be incurred by the home. He said he is concerned with adding more and more things that are luxuries rather than basic needs. REPRESENTATIVE SPOHNHOLZ related that "quality care" is included in Amendment 2 because 374 complaints were received in 2020, making it the second most frequent complaint for assisted living homes that year. In 2019, 583 complaints were received, making it a serious volume. She agreed the language in the amendment is broad but said she prefers not to be too specific in statute because the definition of "quality care" may change a bit over time. The quality of care is a right that also aligns with the home and community-based services final rule that focuses on quality individual experiences. The long term care ombudsman says that the quality of care should focus on a person-centered approach to care, which is well defined because the report goes into this in detail. She said she has been repeatedly assured that the long term care ombudsman and [the Residential Licensing Section] have a very robust working relationship. It is made clear in the long term care ombudsman's report that residents have the right to make choices and to control decisions in their lives even in an assisted living home. Residents have the right to provide input into their care plan and their care planning team. She suggested the department work with the long term care ombudsman to go into more granular detail regarding the definition of quality care. Representative Spohnholz disagreed that internet access is not a right. She argued that it is a right because in 2021 a person who doesn't have access to the internet lacks access to basic information and this is not less important for people with disabilities or elders who need physical support. Amendment 2 doesn't say how it would be paid for, she added, but internet access should be a right in 2021. CO-CHAIR ZULKOSKY removed her objection to Amendment 2. REPRESENTATIVE KURKA objected to Amendment 2. He said he would be more comfortable if the resident had the ability to incur the extra cost of the internet and again questioned whether it is a right to have access to the internet. He maintained that access to food being selected on cultural preferences could be extraordinarily broad and beyond convictions. He questioned whether cultural preference should be considered a right and said the menu should be looked at when a person is considering which home to go into. A roll call vote was taken. Representatives Spohnholz, Zulkosky, and Snyder voted in favor of Amendment 2. Representatives Prax and Kurka voted against it. Therefore, Amendment 2 was adopted by a vote of 3-2. 4:07:23 PM The committee took a brief at-ease at 4:07 p.m. 4:07:47 PM CO-CHAIR SNYDER announced that CSSB 89(FIN) was held over. REPRESENTATIVE KURKA noted that it was past the deadline for submitting amendments to the bill.