REPORT TITLE:
Adult Residential Care Homes


DESCRIPTION:
Stops licensing of new Type I ARCHs on an island until there are
fewer than 10% of Type I ARCHs with 3 or fewer residents; allows
case-by-case licensing on neighbor islands.  Requires DHS to
convene ad hoc complaint committee to determine if complaints of
abuse against Type I ARCH operators are sufficient.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           1437
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO ADULT RESIDENTIAL CARE HOMES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that adult residential
 
 2 care homes play a crucial role in addressing the long-term care
 
 3 needs of Hawaii's aging population.  Adult residential care homes
 
 4 provide twenty-four-hour living accommodations for unrelated
 
 5 adults who require at least minimal assistance in the activities
 
 6 of daily living, personal care services, protection, and health
 
 7 care services, but who do not need the professional health
 
 8 services provided in an intermediate, skilled nursing, or acute
 
 9 care facility.  Type I adult residential care homes are allowed
 
10 to accommodate a maximum of five unrelated adults.  Type II homes
 
11 allow accommodations for six or more such persons.  These homes
 
12 are based in the community and offer an important long-term care
 
13 alternative.  This is particularly true with the advent of newly
 
14 authorized expanded adult residential care homes which provide
 
15 twenty-four-hour living accommodations to nursing facility level
 
16 individuals who have been admitted to a medicaid waiver program,
 
17 or private pay clients who have been certified for this type of
 
18 facility.
 
19      However, the legislature finds that many regular Type I
 

 
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 1 adult residential care homes are currently underutilized.  Some
 
 2 have only one, two, or three residents.  This low utilization
 
 3 rate does not allow the operators of these Type I adult
 
 4 residential care homes to take full advantage of economies of
 
 5 scale in providing time- and labor-intensive twenty-four-hour
 
 6 care for their clients and thus creates great financial pressure
 
 7 for the operators to remain in business.
 
 8      It is the purpose of this Act to maximize the utilization of
 
 9 regular Type I adult residential care homes (not expanded adult
 
10 residential care homes) by imposing a moratorium on the licensing
 
11 of new regular Type I adult residential care homes and by
 
12 requiring the department of human services to strongly encourage
 
13 its public-pay clients to enter these existing underutilized
 
14 homes.  Because the underutilization problem exists primarily on
 
15 the island of Oahu, where most of the homes are located,
 
16 provision is made to avoid exporting the problem to the neighbor
 
17 islands by allowing the department of health to issue new
 
18 licenses on the neighbor islands on a case-by-case basis where
 
19 there is a demonstrable need for new homes.
 
20      The legislature also finds that adult residential care homes
 
21 are engaged in time- and labor-intensive twenty-four-hour care
 
22 for their clients that is very demanding and that their actions
 
23 are sometimes misperceived or misunderstood.  These Type I adult
 

 
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 1 residential care home operators often need to assist residents
 
 2 who are functionally impaired to some degree.  However, care that
 
 3 is provided to a person who has some sort of functional
 
 4 impairment, on occasion, may be misperceived as abusive if
 
 5 delivered in the same way to a person who is not functionally
 
 6 impaired.  For example, a caregiver shouting instructions at a
 
 7 resident who, unbeknownst to the person witnessing the behavior,
 
 8 is hard of hearing and whose hearing aid is being repaired at the
 
 9 time, may be misperceived by the unknowing neighbor as being
 
10 abusive.
 
11      Whenever accusations of wrongdoing are involved, equity must
 
12 be maintained and parties on both sides of a dispute must be
 
13 given equal opportunity to make their cases.  It is, therefore,
 
14 the purpose of this Act to provide a mechanism whereby operators
 
15 of Type I adult residential care homes in Hawaii are guaranteed
 
16 an opportunity to defend themselves in cases of alleged
 
17 misconduct against residents, including abuse and neglect.
 
18      It is a further purpose of this Act is to provide equity for
 
19 the accused by affording the accused Type I adult residential
 
20 care home operator a chance to make his or her case.
 
21      This Act is intended to improve the existing administrative
 
22 and judicial process under part X, chapter 346, Hawaii Revised
 
23 Statutes, while not unduly delaying it, in cases involving
 

 
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 1 complaints of misconduct against residents by establishing a
 
 2 first-step procedure in which the accused operator is given the
 
 3 chance to present the operator's version of what occurred to an
 
 4 ad hoc complaint committee.  This process will also prove cost-
 
 5 effective for operators.  The ad hoc committee review process is
 
 6 not intended to supplant existing administrative or judicial
 
 7 procedures under part X, chapter 346, Hawaii Revised Statutes,
 
 8 but to equitably supplement it.  Upon receiving a finding from
 
 9 the ad hoc committee, it remains the role of the department of
 
10 human services to determine if there is any merit to a complaint
 
11 and thus a basis for the department to proceed with further
 
12 investigation or review.
 
13                              Part I
 
14      SECTION 2.  (a)  The department of health shall determine
 
15 the number of existing Type I adult residential care homes in the
 
16 State that have three or fewer residents as of June 30, 1999, and
 
17 shall identify each specific such facility.  For the purposes of
 
18 this section, these identified facilities shall be designated as
 
19 underutilized.  The department of health shall cease issuing
 
20 licenses to operate new regular Type I adult residential care
 
21 homes on each island until the percentage of these underutilized
 
22 homes on each island falls below ten per cent of the total amount
 
23 of regular Type I adult residential care homes on each island;
 

 
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 1 provided that the department may issue new licenses on a case-by-
 
 2 case basis on the neighbor islands if there is a demonstrable
 
 3 demand for such facilities.
 
 4      (b)  The department of human services shall strongly
 
 5 encourage its clients, for whom the department makes
 
 6 reimbursement payments for residence in regular Type I adult
 
 7 residential care homes but who have not yet been admitted, to
 
 8 enter those homes designated as underutilized by the department
 
 9 of health pursuant to this section.
 
10      (c)  This section shall not apply to expanded adult
 
11 residential care homes.
 
12                              Part II
 
13      SECTION 3.  (a)  This section shall not apply to cases
 
14 involving expanded adult residential care homes.  After receiving
 
15 a complaint against a Type I adult residential care home operator
 
16 accused of misconduct against a resident, including abuse or
 
17 neglect, the department of human services, as part of its regular
 
18 review of such complaints under part X, chapter 346, Hawaii
 
19 Revised Statutes, shall convene an ad hoc complaint committee, as
 
20 a first step, to hear the operator's version of events presented
 
21 by the accused care home operator to determine if there is
 
22 adequate merit to the complaint to proceed further with the
 
23 review.  The department of human services shall convene the ad
 

 
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 1 hoc complaint committee only in cases where a complaint is lodged
 
 2 against a Type I adult residential care home operator.  The
 
 3 department's ad hoc complaint committee shall hear presentations
 
 4 only in complaints where the alleged victim of misconduct is a
 
 5 client for whom reimbursement for care services is made by the
 
 6 department of human services.  The department of human services
 
 7 shall have the sole power to dispose of a complaint.  The work of
 
 8 the ad hoc complaint committee shall operate only as a part of
 
 9 the existing review process of the department of human services
 
10 under part X, chapter 346, Hawaii Revised Statutes, and the ad
 
11 hoc complaint committee shall not have the power to dispose of a
 
12 complaint.  The duty of the ad hoc complaint committee shall be
 
13 to hear presentations from the accused operator and find whether
 
14 the complaint is sufficiently meritorious to warrant a
 
15 continuation of the review process under part X, chapter 346,
 
16 Hawaii Revised Statutes, and report that finding to the
 
17 department of human services.  The director of human services
 
18 shall then proceed to take appropriate and necessary action under
 
19 part X, chapter 346, Hawaii Revised Statutes.
 
20      (b)  In convening the ad hoc complaint committee, the
 
21 department shall enlist the assistance of one representative, or
 
22 a designee, from each of the following:
 
23      (1)  Department of health;
 

 
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 1      (2)  Department of human services;
 
 2      (3)  The office of ombudsman;
 
 3      (4)  United Group of Home Operators; and
 
 4      (5)  Alliance of Residential Care Administrators.
 
 5 Five panel members shall constitute a quorum and decisions shall
 
 6 be made by majority vote.
 
 7      (c)  Whenever the department of human services receives a
 
 8 complaint against a Type I adult residential care home operator
 
 9 that alleges misconduct against a resident residing in the care
 
10 home, the department shall first convene the ad hoc complaint
 
11 committee.  The ad hoc complaint committee shall hear
 
12 presentations from the accused operator and shall make a finding
 
13 expeditiously as required under subsection (a).
 
14      (1)  In cases where a complaint of misconduct involves abuse
 
15           or neglect of a client, the department of human
 
16           services shall immediately withdraw the client alleged
 
17           to be the victim of abuse or neglect and for whom the
 
18           department reimburses the care home operator for care
 
19           provided, and shall immediately convene the ad hoc
 
20           complaint committee to hear presentations;
 
21      (2)  In cases where a complaint of misconduct does not
 
22           involve abuse or neglect of a client, the department
 
23           shall refrain from withdrawing the client from the care
 

 
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 1           home but shall immediately convene the ad hoc complaint
 
 2           committee to hear presentations.
 
 3 If the complaint committee finds that the complaint is
 
 4 insufficiently meritorious to warrant further proceedings, the
 
 5 department shall return the client to the care home in cases
 
 6 involving complaints of abuse or neglect under paragraph (1).  On
 
 7 the other hand, if the complaint committee finds that the
 
 8 complaint is sufficiently meritorious, the department shall not
 
 9 return the client to the care home in cases under paragraph (1)
 
10 and shall immediately withdraw the client from the care home in
 
11 cases under paragraph (2) until the complaint is fully resolved
 
12 by the department.  In all cases, the finding of the ad hoc
 
13 complaint committee and its report to the department shall be
 
14 considered the conclusion of the first step in the appropriate
 
15 existing administrative and judicial procedures under part X,
 
16 chapter 346, Hawaii Revised Statutes.  Upon receiving the report,
 
17 the department shall implement any remaining procedures, as
 
18 necessary, to resolve the complaint expeditiously.
 
19      (d)  Nothing in this section governing the ad hoc complaint
 
20 committee review process shall prevent the department of human
 
21 services, the department of health, the alleged victim of
 
22 misconduct, whether or not involving charges of abuse or neglect,
 
23 or any other agency or affected individual, as complainant, from
 

 
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 1 seeking other remedies by instituting any judicial action.
 
 2      SECTION 4.  This Act shall take effect upon its approval.
 
 3 
 
 4                           INTRODUCED BY:  _______________________