SB 89-ASSISTED LIVING HOMES: HOUSE RULES  3:28:56 PM CO-CHAIR SNYDER announced that the first order of business would be CS FOR SENATE BILL NO. 89(FIN), "An Act relating to house rules for assisted living homes." CO-CHAIR SNYDER reminded members that this bill, by request of the governor, is the companion bill to HB 103, which the committee heard on 4/13/21 and for which public testimony was taken. She further reminded members that the committee first heard CSSB 89(FIN) on [5/4/21], at which time amendments were offered and the bill was held over for further discussion and the amendment deadline extended. She explained that after Amendment 2 was adopted it became clear during testimony by Mr. Craig Baxter that the amendment needed to be changed. She said the amendment's sponsor, Representative Spohnholz, would therefore like to withdraw Amendment 2 and offer a revised version to be responsive to the needs of the Department of Health and Social Services (DHSS). She invited Representative Spohnholz to provide background information. 3:31:32 PM REPRESENTATIVE SPOHNHOLZ stated that in working with Mr. Baxter and Suzanne Cunningham [Department of Health and Social Services (DHSS)], and Stephanie Wheeler, State Long Term Care Ombudsman, it was decided to rescind action on Amendment 2 and adopt a new amendment that is clearer and will not require as detailed of a regulation package. Amendment 3, she continued, is therefore an update to the three changes put into the bill at the request of the long term care ombudsman [via adoption of Amendment 2], which are updated Internet access, quality of care, and protection against retaliation. 3:32:59 PM The committee took an at-ease from 3:33 p.m. to 3:35 p.m. 3:35:29 PM CO-CHAIR ZULKOSKY moved to rescind the adoption of Amendment 2 to CSSB 89(FIN). There being no objection, the adoption of Amendment 2 was rescinded. REPRESENTATIVE SPOHNHOLZ withdrew Amendment 2 to CSSB 89(FIN). There being no objection, it was so ordered. 3:35:56 PM REPRESENTATIVE SPOHNHOLZ moved to adopt Amendment 3 to CSSB 89(FIN), labeled 32-GS1675\B.1, Dunmire, 5/12/21, 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) having access to the Internet provided  by the home, subject to availability in the community,  and having a private device to access the Internet at  the resident's own expense" 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; in this  paragraph, "quality care" means care of a resident in  accordance with the resident's assisted living plan,  plan of care, personal preferences, and health care  providers' recommendations" Page 3, following line 20: Insert a new bill section to read: "* Sec. 4. AS 47.33.990 is amended by adding new paragraphs to read: (20) "retaliation" means an adverse action taken, or threatened, by an assisted living home or an agent of an assisted living home against a resident in response to a complaint made to, or about, the home." CO-CHAIR ZULKOSKY objected for the purpose of discussion. REPRESENTATIVE SPOHNHOLZ explained that Amendment 3 is the [proposed] new compromise language from working with Mr. Baxter and [Ms.] Wheeler, and that the language would continue to provide protection from abuse and discrimination. She specified that the language for updating the Internet access provision now states, "having access to the Internet provided by the home, subject to availability in the community, and having a private device to access the Internet at the resident's own expense". So, she explained, it is saying that the resident must provide his or her own device and that to the extent Internet is available in the community, the home should provide it. Representative Spohnholz conveyed that the language for quality care now states, "means care of a resident in accordance with the resident's assisted living plan, plan of care, personal preferences, and health care providers' recommendations". She noted that this definition is consistent with the intent of a home and community-based waiver services final rule, given the purpose of the bill is to get Alaska in compliance with that. Lastly, she said, Amendment 3 would add a definition to retaliation under AS 47.33.990, which is not currently defined in the assisted living homes chapter. This new language states that retaliation "means an adverse action taken, or threatened, by an assisted living home or an agent of an assisted living home against a resident in response to a complaint made to, or about, the home." She pointed out that this language is more specific so that a perception of a threat does not qualify. 3:38:20 PM REPRESENTATIVE KURKA said his concern is whether this language would prohibit the home from expelling a resident who is hostile and making it a bad experience for everyone. REPRESENTATIVE SPOHNHOLZ replied that Amendment 3 is drafted in a way so it would not create the scenario where assisted living homes are forced to have hostile residents living there. She deferred to DHSS to address the process for evicting someone who is hostile. 3:40:26 PM CRAIG BAXTER, Program Manager, Residential Licensing Section, Division of Health Care Services, Department of Health and Social Services (DHSS), responded that there are six different reasons under which an assisted living home can evict a resident, of which one is documented disruptive behavior that puts the resident, staff, or other residents in the home at risk. If the facility meets proof that the resident's behaviors are putting others at risk, [the facility] can terminate its contract with the resident. He said DHSS would not look at it as retaliation if the resident involved was threatening others, harming others, harming themselves, or harming staff. 3:41:15 PM REPRESENTATIVE KURKA said he is concerned about the practicality of the language in Amendment 3 regarding Internet availability in the community. For example, he pointed out, Wasilla has good Internet service in general but certain spots within the community have poor service, which is the case for his business location. He said it makes sense that the device for accessing the Internet be at the resident's own expense, but he is concerned about having the requirement as a right. REPRESENTATIVE MCCARTY offered his belief that the amendment's language, "subject to availability in the community," does address the concern because it would fit the scenario of availability in one spot in the community but no availability across the street from that spot. REPRESENTATIVE KURKA argued that the language is the same community not a different community, and "community" is broader than the language [in Amendment 2] which specifically stated available to the "home". So, he maintained, if a certain level of service is available in the community, the home would have to provide that level of service even if the Internet provider was unable to provide that same level of access to the home. REPRESENTATIVE MCCARTY said he is not concerned with the use of community nor the device being at the resident's own expense. REPRESENTATIVE KURKA suggested a conceptual amendment that would replace "in the community" with "to the home". REPRESENTATIVE SPOHNHOLZ suggested "in the community to the home,". CO-CHAIR SNYDER suggested "availability to the home in the community,". 3:46:33 PM REPRESENTATIVE SPOHNHOLZ moved Conceptual Amendment 1 to Amendment 3: after "availability" insert "to the home". Thus page 1, line 11, would read, "subject to availability to the home in the community, and having a private device to". There being no objection, Conceptual Amendment 1 to Amendment 3 was adopted. 3:47:56 PM The committee took a brief at-ease. 3:48:34 PM CO-CHAIR ZULKOSKY asked whether it is clear within this language that there are exceptions for facilities located within communities that don't have unencumbered access to the Internet. MR. BAXTER responded that he believes the language as crafted would cover DHSS for ensuring that exemptions could be carved out for communities and individual facilities that have difficulty accessing the Internet or high-speed Internet. 3:51:03 PM REPRESENTATIVE KURKA noted the inequality of Internet pricing across the state. He pointed out that the further away from urban areas the higher the cost for the same level of service costs. He said he is concerned about putting this cost burden on the assisted living homes unless it is something the homes already have. He said he is going to oppose Amendment 3 rather than offer an amendment to shift this cost burden from the home to the resident. CO-CHAIR ZULKOSKY removed her objection to the motion to adopt Amendment 3 [as amended] to CSSB 89(FIN). REPRESENTATIVE KURKA objected to Amendment 3, as amended. A roll call vote was taken. Representatives McCarty, Spohnholz, Fields, Zulkosky, and Snyder voted in favor of Amendment 3, as amended. Representatives Prax and Kurka voted against it. Amendment 3, as amended, was therefore adopted by a vote of 5-2. 3:54:21 PM REPRESENTATIVE KURKA moved to adopt Amendment 4 to CSSB 89(FIN), labeled 32-GS1675\B.2, Dunmire, 5/13/21, which read: Page 1, lines 4 - 5: Delete ". The house rules must be consistent with  42 C.F.R. 441.301(c)(4) and [,]" Insert "," Page 1, line 6, following "chapter.": Insert "An assisted living home that receives  federal funds shall adopt rules consistent with 42  C.F.R. 441.301(c)(4)." Page 1, line 12, following "42 C.F.R.  441.301(c)(4)(vi)(D)": Insert "if the provider receives federal funds" CO-CHAIR SNYDER objected for the purpose of discussion. REPRESENTATIVE KURKA spoke to Amendment 4. He allowed it is important to protect residents in [assisted living] homes in statute, but said he is concerned that the bill cites federal laws and regulations that the homes must comply with. That is appropriate for homes which are receiving federal funds, he stated, but it would be unjust and inviting federal overreach to require homes which do not receive federal funds to comply with federal regulations. He said Amendment 4 would therefore limit the scope of this to those homes that receive federal. CO-CHAIR SNYDER requested Ms. Lynne Keilman-Cruz to speak to the concern that Amendment 4 would address. 3:56:11 PM LYNNE KEILMAN-CRUZ, Chief of Quality, Division of Seniors and Disabilities, related that [DHSS] had considered that language in the bill but didn't see how a system could be established where private-pay individuals who could potentially pay more would have less rights than those receiving support under the Medicaid waivers. It would be a double standard, she stated, so for consistency [DHSS] made it apply to all providers regardless of the funding type. She said [DHSS] believes this is minimally burdensome as currently written without Amendment 4 and there is no indication that providers would not currently meet those minimal standards. She further noted that there are very few providers not receiving Medicaid or not certified Medicaid providers, so the language in the bill is minimally burdensome to the department. MR. BAXTER agreed. He stated that if this right is going to be afforded to residents in some assisted living homes it should be afforded in all assisted living homes. For residents' rights, he said, it must be remembered that these are the residents' homes, not institutions, so this is something that should be supported across all facilities, not as certain ones that are dependent on Medicaid dollars. He said residents and their families would find it difficult to comprehend if a resident was to move from one home to another and the rules on their rights suddenly change because that home doesn't accept Medicaid home and community-based waiver service. He maintained that residents should be afforded the right regardless of which assisted living home they are residing in and should be able to have visitors of their choosing at the time of their choice, just as would anyone else living in their own personal home. 4:00:01 PM REPRESENTATIVE PRAX said he doesn't understand how anybody would be forced to live in any given home, so he questions why the homes should be required to do something. If a person wants a service that is not offered, he continued, then that person has the right to not purchase that assisted living home. CO-CHAIR SNYDER responded that sometimes by virtue of limited availability a person's options are restricted, and therefore someone requiring the services of an assisted living home is forced into that option. REPRESENTATIVE SPOHNHOLZ noted 42 CFR 441.301(c)(4) includes an individual's rights to privacy, dignity, respect, and freedom from coercion and restraint. She stated that folks should be able to have the things listed here as rights regardless of whether they are being paid for by the resident or by Medicaid. These are people's homes, places where three or more people live, she continued, and people should be able to live in dignity and free from interference, so they have the liberty to live their best lives. REPRESENTATIVE PRAX concurred, but said the simple solution is that someone can move if they don't like where they are living. He said he questions how often people are forced to live in a given home situation. REPRESENTATIVE SPOHNHOLZ answered that these are people who cannot live by themselves autonomously. She stated that in some communities there may not be multiple assisted living homes and therefore few choices. She further stated that at a little over 700 assisted living homes in Alaska there aren't enough to meet the need and it is difficult to find a home. It needs to be ensured that everybody can have the rights of dignity and liberty, she said, regardless of how it is being paid for. 4:03:47 PM REPRESENTATIVE KURKA stated that Amendment 4 would not change the nearly three pages of statute that do guarantee the rights of residents. He said his objection and the thrust of the amendment is not that onerous things are being added to this law, but that federal statute is being cited, which is subject to change and not governed by the Alaska State Legislature. If it is thought that those federal rules are good, he continued, then they should be put into state statute instead of citing the federal code number and saying a home must comply with federal rules and state rules. There are two standards, he stated, and the issue is saying that a home must comply with the federal rules even if not receiving federal monies. CO-CHAIR SNYDER stated she sees the logic, but noted it isn't unusual to reference federal rules and regulations in Alaska statute and therefore it isn't something that makes this unique to some other aspects of Alaska's statutes. She said there is opportunity moving forward if Representative Kurka wants to pursue being more specific with state protections and integrating that into state statute, but that it gives her pause to remove these protections before being prepared to insert state level protections. CO-CHAIR ZULKOSKY asked whether she is correct in understanding that the department's position is that adopting Amendment 4 could make enforcement of this legislation complicated and potentially burdensome for DHSS. MR. BAXTER replied that having two different standards would make it difficult for DHSS to apply them and people would struggle when trying to transition between the facility types with different standards. He advised that having the same standard across the board for all facilities and all residents is ideal, especially since it is a resident's right. 4:08:35 PM REPRESENTATIVE KURKA submitted that citing federal [law and regulation] in Alaska statutes is part of the problem the state is held by federal strings that may or may not be in the best interest of the state and its communities. He said he isn't saying there is anything objectionable in this specific federal statute, rather he is objecting to applying federal strings to [assisted living] homes that are not taking federal money. Regarding the department's concerns about enforcement, he argued that DHSS has two separate standards that are being added here and it's not a matter that these rights are being deprived but that new federal requirements are being referenced in addition to the state's requirements. He said homes will have to comply with nearly three pages of rights and regulations and it's a matter of whether to comply with federal statute or code when a home is not receiving federal money. CO-CHAIR SNYDER maintained her objection. A roll call vote was taken. Representative Kurka voted in favor of Amendment 4. Representatives Fields, McCarty, Spohnholz, Prax, Zulkosky, and Snyder voted against it. Therefore, Amendment 4 failed to be adopted by a vote of 1-6. 4:11:35 PM CO-CHAIR ZULKOSKY moved to report CSSB 89(FIN), as amended, out of committee with individual recommendations and the accompanying fiscal notes, and to give Legislative Legal Services the authority to make technical and conforming changes. 4:12:09 PM The committee took a brief at-ease. 4:12:42 PM REPRESENTATIVE KURKA objected. A roll call vote was taken. Representatives Spohnholz, Fields, McCarty, Prax, Zulkosky, and Snyder voted in favor of moving CSSB 89(FIN), as amended, out of committee. Representative Kurka voted against it. Therefore, HCS CSSB 89 (HSS) was moved out of the House Health and Social Services Standing Committee by a vote of 6-1.