HB1510.DOC

SECTION 1. The legislature finds that there are currently more than 238,000 Hawaii residents aged sixty and over. This population constitutes 18.7 per cent of Hawaii's total population. By 2030, people aged sixty and older are projected to increase to more than 27.4 per cent. Hawaii's total population is expected to grow by twenty-one per cent between 2000 and 2030. However, the number of adults sixty years and older will increase by 93.8 per cent and those eighty-five years and older will increase by 174.7 per cent during the same period. The legislature further finds that there is a "silver tsunami" coming, with even more individuals entering their senior years and retirement.

The recession of 2007 removed the possibility of a comfortable retirement for many of the State's elderly, and once seniors are no longer able to work or are employable, there is no safety net to keep retired Hawaii residents out of homelessness. In the next ten years, the "silver tsunami" will substantially affect the entire State and the healthcare system. The legislature finds that essential policies must be enacted to address the issues relating to Hawaii's elderly and disabled to address the impending "silver tsunami".

The purpose of this Act is to create and establish various policies to adequately address the various issues concerning the elderly and disabled and the community healthcare industry while ensuring consumer protection for Hawaii's elderly and disabled.

PART I

SECTION 2. Section 321-15.6, Hawaii Revised Statutes, is amended to read as follows:

"§321-15.6 Adult residential care homes; community-based care homes; day care centers; licensing. (a) All adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct unannounced visits, other than the inspection for relicensing, to every licensed adult residential care home [~~and~~], licensed expanded adult residential care home, and any community-based care home or day care center licensed or certified and under the purview of the department on an annual basis and at such intervals as determined by the department to ensure the health, safety, and welfare of each resident. Unannounced visits may be conducted during or outside regular business hours. All inspections relating to follow-up visits, visits to confirm correction of deficiencies, or visits to investigate complaints or suspicion of abuse or neglect shall be conducted unannounced during or outside regular business hours. Annual inspections for relicensing may be conducted during regular business hours or at intervals determined by the department. Annual inspections for relicensing shall be conducted with notice, unless otherwise determined by the department."

SECTION 3. Section 321-15.62, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:

"§321-15.62 Expanded adult residential care homes; community-based care homes; day care centers; licensing. (a) All expanded adult residential care homes and any community-based care home or day care center providing healthcare to the elderly or disabled who are unrelated to the caregiver family shall be licensed or certified and subject to the purview of the department to ensure the health, safety, and welfare of the individuals placed therein."

SECTION 4. Section 321-15.7, Hawaii Revised Statutes, is amended to read as follows:

"§321-15.7 Penalty. Any person who intentionally operates an adult residential care home, community-based foster family home, adult foster home, adult day care center, or hospice home without a license shall be guilty of a misdemeanor."

SECTION 5. Section 3, Act 184, Session Laws of Hawaii 2016, is repealed.

["~~SECTION~~ ~~3. Section 321-15.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:~~

(a) All adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct visits and inspections pursuant to section 321-1.9."]

SECTION 6. Section 4, Act 184, Session Laws of Hawaii 2016, is repealed.

["~~SECTION~~ ~~4. Section 321-15.62, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:~~

(a) All expanded adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct visits and inspections pursuant to section 321-1.9."]

PART II

SECTION 7. Section 321-1.8, Hawaii Revised Statutes, is amended to read as follows:

"[[]§321‑1.8[]] Inspections; public notice. (a) Beginning with inspections occurring on January 1, 2015, the department of health shall post on its website electronic copies of reports for all inspections it performs of the following state-licensed care facilities:

(1) Adult day health centers;

(2) Adult day care centers;

(3) Community care foster family homes;

(4) Developmental disabilities domiciliary homes as defined in section 321‑15.9;

(5) Developmentally disabled adult foster homes;

(6) Long-term care facilities as defined in section 349‑21(f); and

(7) Special treatment facilities as defined in section 334‑1.

(b) Each inspection report shall be posted on the department of health's website within five working days of the conclusion of each inspection and shall include the following information:

(1) The date of the inspection;

(2) A description of violations of relevant state laws or rules, if applicable;

(3) Plans of correction and the status of corrective actions in response to any violations, if applicable;

(4) A list and description of all corrective actions taken by the facility, if applicable, to be submitted by the facility and added to the report at a later time, as determined by the department; and

(5) Other information regarding the quality and conditions of the facility the department of health deems appropriate.

(c) Each inspection report posted on the department of health's website that reports a violation committed by a state-licensed care facility as described in subsection (a) shall be removed from the website after three years from the date the report was posted.

(d) Beginning , in addition to the inspection information required by subsection (a), the department of health may maintain a forum on its website where all state-licensed care facilities specified in subsection (a) may post vacancy information to facilitate the placement of individuals therein."

SECTION 8. (a) No later than , the department of health may convene a working group to discuss and provide feedback on the implementation and maintenance of a forum on its website where state-licensed care facilities may post vacancy information to facilitate the placement and referrals of individuals in the facilities within state-licensed care facilities, as specified in section 321-1.8(d), Hawaii Revised Statutes.

(b) The department of health shall submit a report to the legislature no later than twenty days before the convening of the regular session of 2018 of its findings and recommendations relative to the implementation and maintenance of a forum on its website, as specified in subsection (a). The report shall also include feedback on the posting of vacancy information on the website.

SECTION 9. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2017-2018 and the same sum or so much thereof as may be necessary for fiscal year 2018-2019 for the implementation and maintenance of a forum on the department of health's website as required by this part.

The sums appropriated shall be expended by the department of health for the purposes of this Act.

PART III

SECTION 10. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§321- License, relicense, certification, and recertification fees. (a) The department shall charge and collect fees for the licensure, relicensure, certification, and recertification of the following facilities:

(1) Not more than $ per year for adult residential care homes;

(2) Not more than $ per year for expanded adult residential care homes;

(3) Not more than $ per year for developmental disabilities domiciliary homes;

(4) Not more than $ per year for community care foster family homes;

(5) Not more than $ per year for adult day care centers;

(6) Not more than $ per year for adult foster homes for developmentally disabled individuals;

(7) Not more than $ per year for other homes specified in section 346-53; and

(8) Not more than $ per year for case managers having purview of facilities specified in paragraphs (1) to (7).

(b) The fees shall be deposited into the general fund to support the licensing, relicensing, certification, and recertification of facilities under this section.

SECTION 11. The department of health shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2018 on the following:

(1) The nexus and use of the fees collected pursuant to this part;

(2) A brief description of any operational problems or legal impediments that are anticipated to affect collection of the fees or have affected collection of the fees; and

(3) With respect to community care facilities, a cost analysis on the savings to the State in relation to providing health care services to the elderly and disabled persons.

PART IV

SECTION 12. The legislature finds that there is an ever-increasing need for community care foster family homes to support the health and long-term care needs of an aging population and families. Community care foster family homes provide an essential function in the State by providing twenty-four-hour living accommodations, which include housing, supervision, personal care, and assistance with daily living activities for their residents. These homes provide individuals who are at a nursing facility level of care with living accommodations in a family-like setting, an alternative to living in an institutional setting.

Community care foster family homes are licensed to provide accommodations and services to not more than two adults at any one time, at least one of whom shall be a medicaid recipient, and who are at the nursing facility level of care. The department of health working together with the department of human services may certify a community care foster family home for a third adult who is at the nursing level of care and a medicaid recipient, provided that certain requirements are met.

The legislature further finds that not only do medicaid clients have limited options for long-term care, but so do individuals who do not rely on medicaid for long-term care. Besides providing accommodations to medicaid recipients, community care foster family homes also provide accommodations to private-pay individuals. There is also a recognized need to accommodate private-pay individuals who share a long-term relationship. As the cost of medical care continues to rise, it is becoming apparent that even those who do not rely on medicaid for their long-term care cannot afford the cost of private care, leaving this population, also, with limited options.

The purpose of this part is to recognize the varied needs of the State's aging population by giving the department of health the flexibility to permit two private-pay individuals to be cared for in the same community care foster family home, provided they meet certain qualifying conditions.

SECTION 13. Section 321-15.62, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The director of health shall adopt rules regarding expanded adult residential care homes in accordance with chapter 91 that shall implement a social model of health care designed to:

(1) Protect the health, safety, civil rights, and rights of choice of residents in a nursing facility or in home- or community-based care;

(2) Provide for the licensing of expanded adult residential care homes for persons who are certified by the department of human services, a physician, advanced practice registered nurse, or registered nurse case manager as requiring skilled nursing facility level or intermediate care facility level of care who have no financial relationship with the home care operator or facility staff; provided that the rules shall allow group living in the following two categories of expanded adult residential care homes as licensed by the department of health:

(A) A type I home shall consist of five or fewer residents with no more than [~~two~~] three nursing facility level residents; provided that more nursing facility level residents may be allowed at the discretion of the department; and provided further that up to six residents may be allowed at the discretion of the department to live in a type I home; provided that the primary caregiver or home operator is a certified nurse aide who has completed a state-approved training program and other training as required by the department; and

(B) A type II home shall consist of six or more residents, with no more than twenty per cent of the home's licensed capacity as nursing facility level residents; provided that more nursing facility level residents may be allowed at the discretion of the department;

provided further that the department shall exercise its discretion for a resident presently residing in a type I or type II home, to allow the resident to remain as an additional nursing facility level resident based upon the best interests of the resident. The best interests of the resident shall be determined by the department after consultation with the resident, the resident's family, primary physician, case manager, primary caregiver, and home operator;

(3) Comply with applicable federal laws and regulations of title XVI of the Social Security Act, as amended; and

(4) Provide penalties for the failure to comply with any rule."

SECTION 14. Section 321-481, Hawaii Revised Statutes, is amended by amending the definition of "community care foster family home" or "home" to read as follows:

""Community care foster family home" or "home" means a home that:

(1) Is regulated by the department in accordance with rules that are equitable in relation to rules that govern expanded adult residential care homes;

(2) Is issued a certificate of approval by the department or its designee to provide, for a fee, twenty-four-hour living accommodations, including personal care and homemaker services, for not more than two adults at any one time, at least one of whom shall be a medicaid recipient, who are at the nursing facility level of care, who are unrelated to the foster family, and who are receiving the services of a licensed home and community-based case management agency; provided that the department, in its discretion, may certify a home for a third adult who is at the nursing level of care and a medicaid recipient; provided further that [~~the~~]:

(A) The department of health, working together with the department of human services, may jointly in their discretion allow two private-pay individuals to be cared for in the same community care foster family home if all of the following are met:

(i) The community care foster family home is certified for three beds;

(ii) Operators of three-bed community care foster family homes immediately notify the department or its designee of any vacancy in writing; and

(iii) The two private-pay clients are in a relationship with each other as a married or civil union couple;

(B) The department, in its discretion, may certify a home for a third adult who is at the nursing level of care and a medicaid recipient; provided further that the:

[~~(A) Home~~] (i) The home has been certified and in operation for not less than one year;

[~~(B) Primary~~] (ii) The primary caregiver is a certified nurse aide, as defined in section 457A‑1.5, who has completed a state-approved training program and other training as required by the department; and

[~~(C) Substitute~~] (iii) The substitute caregiver is a nurse aide, as defined in section 457A-1.5, who has completed a state-approved training program and other training as required by the department; and

(3) Does not include expanded adult residential care homes or assisted living facilities."

SECTION 15. The department of health and the department of human services shall jointly submit a report of their findings and recommendations to the legislature, no later than twenty days prior to the convening of the regular session of 2018, on the authorization to allow two private-pay individuals to be cared for in the same community care foster family home as provided under this part, including its impact on the availability of space for medicaid clients.

SECTION 16. It is the intent of this part not to jeopardize the receipt of any federal aid. If this part is found to be in conflict with federal requirements that are a prescribed condition for the allocation of federal funds to the State, this part shall be deemed void.

PART V

SECTION 17. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§321- Compensation for caregivers and case managers. The department shall ensure caregivers are fairly compensated as follows:

(1) Not more than $ per year for caregivers working in adult residential care homes;

(2) Not more than $ per year for caregivers working in expanded adult residential care homes;

(3) Not more than $ per year for caregivers working in developmental disabilities domiciliary homes;

(4) Not more than $ per year for caregivers working in community care foster family homes;

(5) Not more than $ per year for caregivers working in adult day care centers;

(6) Not more than $ per year for caregivers working in adult foster homes for developmentally disabled individuals;

(7) Not more than $ per year for caregivers working in other homes specified in section 346-53; and

(8) Not more than $ per year for case managers having purview of facilities specified in paragraphs (1) to (7)."

PART VI

SECTION 18. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§321- Community health care facilities; case managers; late payment interest. The department shall reimburse community health care facilities and case managers with purview over those facilities for the interest on late payments that are overdue by at least thirty days. The interest shall be calculated as a percentage of the late payment as follows:

(1) per cent for adult residential care homes;

(2) per cent for expanded adult residential care homes;

(3) per cent for developmental disabilities domiciliary homes;

(4) per cent for community care foster family homes;

(5) per cent for adult day care centers;

(6) per cent for adult foster homes for developmentally disabled individuals;

(7) per cent for other homes specified in section 346-53; and

(8) per cent for case managers having purview of facilities specified in paragraphs (1) to (7)."

SECTION 19. The department of health shall submit a report to the legislature with respect to community health care facilities no later than twenty days before the convening of the regular session of 2018 on:

(1) The actions taken to ensure timely payments to community health care facilities and case managers;

(2) Any operational problems or legal impediments that are anticipated to affect or have affected the department's ability to make timely payments to community health care facilities and case managers; and

(3) A cost analysis on the savings to the State in relation to providing health care services to the elderly and disabled persons.

PART VII

SECTION 20. Section 321-483, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The department shall adopt rules pursuant to chapter 91 relating to:

(1) Standards of conditions and competence for the operation of community care foster family homes[;] and any other community-based care home or facility licensed or certified under the department;

(2) Procedures for obtaining and renewing a certificate of approval from the department; provided that the department shall grant or deny:

(A) An application for an initial certificate of approval within days after the department's receipt of the application; and

(B) An application to renew a certificate of approval within days after the department's receipt of the application;

(3) Application fee for an initial certificate of approval and to renew a certificate of approval; provided that the application fee for an initial certificate of approval shall be $ and the fee to renew a certificate of approval shall be $ ;

[~~(3)~~] (4) Minimum grievance procedures for clients of community care foster family home services[;] and any other community-based care home or facility licensed or certified under the department;

[~~(4)~~] (5) Requirements for primary and substitute caregivers caring for three clients in community care foster family homes and any other community-based care home or facility licensed or certified under the department, including:

(A) Mandating that primary and substitute caregivers be twenty-one years of age or older;

(B) Mandating that primary and substitute caregivers complete a minimum of twelve hours of continuing education every twelve months or at least twenty-four hours of continuing education every twenty-four months;

(C) Allowing the primary caregiver to be absent from the community care foster family home or other community-based care home or facility for no more than twenty-eight hours in a calendar week, not to exceed five hours per day; provided that the substitute caregiver is present in the community care foster family home or other community-based care home or facility during the primary caregiver's absence;

(D) Where the primary caregiver is absent from the community care foster family home or other community-based care home or facility in excess of the hours as prescribed in subparagraph (C), mandating that the substitute caregiver be a certified nurse aide; and

(E) Mandating that the substitute caregiver have, at a minimum, one year prior work experience as a caregiver in a community residential setting or in a medical facility."

PART VIII

SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 22. This Act shall take effect on July 1, 2017.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1510
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII