Legislature(2009 - 2010)CAPITOL 106

04/11/2009 03:00 PM House HEALTH & SOCIAL SERVICES

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Heard & Held
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Moved Out of Committee
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Heard & Held
HB 223-TRAINING FOR PSYCHIATRIC TREATMENT STAFF                                                                               
3:34:58 PM                                                                                                                    
CO-CHAIR KELLER announced  that the next order  of business would                                                               
be HOUSE  BILL NO.  223, "An Act  relating to  the qualifications                                                               
for  residential psychiatric  treatment  center caregiver  staff;                                                               
and providing for an effective date."                                                                                           
[The committee had  previously adopted Version C,  as the working                                                               
3:35:39 PM                                                                                                                    
CO-CHAIR  HERRON  moved  to  adopt  the  amendment  labeled  C.3,                                                               
4/10/09, which read: [original punctuation provided]                                                                            
[Included in the members' packets.]                                                                                             
     Page 1, line 14 - page 2, line 3:                                                                                          
          Delete all material and insert:                                                                                       
          "residential treatment for children, inpatient                                                                        
     long-term      treatment   for   children,   or   other                                                                    
     treatment of severely    emotionally          disturbed                                                                    
     children; and"                                                                                                             
     Page 2, lines 9-13:                                                                                                        
          Delete all material and insert:                                                                                       
               "(A) at least four years of increasingly                                                                         
     responsible    caregiver   experience  in   residential                                                                    
     treatment for children,  inpatient  long-term treatment                                                                    
     of children, or treatment of  severely      emotionally                                                                    
     disturbed children; and"                                                                                                   
     Page 2, lines 24-27:                                                                                                       
          Delete all material and insert:                                                                                       
               "(C) be assigned to work at the center only                                                                      
     during    hours in  which supervision or  mentorship is                                                                    
     available on- site from an individual                                                                                      
                    (i)who has a bachelor's degree in a                                                                         
     human-    services-related    field   or    meets   the                                                                    
     requirements of (2) or   (3)   of    this   subsection,                                                                    
                    (ii) there must be no less than 1                                                                           
     person on-duty      who meets the criteria under (i)                                                                       
     of this paragraph for each    6   caregivers  who   are                                                                    
     qualified only under this subsection."                                                                                     
     Page 2, line 28                                                                                                            
          Following "training"                                                                                                  
          Insert "in residential child care"                                                                                    
     Page 3, line 3:                                                                                                            
          Delete all material and insert:                                                                                       
      "*Sec.2. The uncodified law of  the State of Alaska is                                                                  
     amended by adding a new section to read:                                                                                   
          TRANSITIONAL   PROVISIONS;   REGULATIONS.      The                                                                    
     Department of  Health and  Social Services  may proceed                                                                    
     to adopt regulations  necessary regarding standards for                                                                    
     residential  child   care  facilities,   including  the                                                                    
     qualifications    of    caregivers    in    residential                                                                    
     psychiatric  treatment centers.   The  regulations take                                                                    
     effect under  AS 44.62 (Administrative  Procedure Act),                                                                    
     provided  that regulations  inconsistent with  this Act                                                                    
     may not be adopted with  an effective date earlier than                                                                    
     April 15, 2010.                                                                                                            
       *Sec. 3. AS 47.32.055 is repealed.                                                                                     
       *Sec. 4.  Sections 1  and 2 of  this Act  take effect                                                                  
     immediately under AS 01.10.070(c).                                                                                         
       *Sec. 5.  Section 3  of this  Act takes  effect April                                                                  
     15, 2010.                                                                                                                  
3:35:49 PM                                                                                                                    
REPRESENTATIVE HOLMES objected for discussion.                                                                                  
3:36:42 PM                                                                                                                    
MATT JOHNSON,  Staff to Representative  Wes Keller,  Alaska State                                                               
Legislature,  said  that  the  amendment,  labeled  C.3,  was  an                                                               
attempt  to  consolidate all  of  the  proposed amendments.    He                                                               
discussed each  of the provisions  offered in the amendment.   He                                                               
explained that the  Page 1 and the Page 2,  lines 9-13 provisions                                                               
would make the statute conform  exactly to current standards.  He                                                               
stated that Page 2, lines  24-27 would ensure that caregivers who                                                               
were qualified  under the  new standard  in subsection  (c) could                                                               
only work when a supervisor who  had at least a bachelor's degree                                                               
in a  human-service-related field  or experience in  treatment of                                                               
children  was  on-duty.    He   also  noted  that  the  ratio  of                                                               
supervision could be  no less than 1  to 6.  He  pointed out that                                                               
Page  2,  line  28,  would  ensure that  the  training  would  be                                                               
equivalent to  that currently provided.   He summarized  that the                                                               
new Section  2 would  authorize DHSS  to adopt  regulations which                                                               
might be  inconsistent with Section  1, provided they did  not go                                                               
into  effect prior  to April  15,  2010.   He said  that the  new                                                               
Section 3  would repeal  some of  the qualifications  required of                                                               
caregivers in  RPTCs [residential psychiatric  treatment center],                                                               
as of  April 15,  2010.   He presented the  new Section  4, which                                                               
conferred authority upon DHSS to  adopt regulations for caregiver                                                               
qualifications  and  other  standards  for RPTCs,  and  would  be                                                               
immediately effective.  He finished  the amendment discussion and                                                               
reported that  the new Section  5 would delay the  effective date                                                               
of the repealer in Section 3 until April 15, 2010.                                                                              
3:40:07 PM                                                                                                                    
REPRESENTATIVE CISSNA asked if DHSS was going to comment.                                                                       
MR. JOHNSON  replied that DHSS  had just  received a copy  of the                                                               
proposed amendment.                                                                                                             
3:40:33 PM                                                                                                                    
REPRESENTATIVE COGHILL  opined that DHSS could  already solve the                                                               
problem without  SB 32.   He announced  that he would  oppose the                                                               
bill,  provided DHSS  arrived  at  a solution.    He offered  his                                                               
support  of  the proposed  amendment  if  it would  facilitate  a                                                               
solution to the workforce entrance barrier problem.                                                                             
3:42:25 PM                                                                                                                    
CO-CHAIR KELLER stated that he wanted only one working document.                                                                
3:42:35 PM                                                                                                                    
REPRESENTATIVE SEATON referred to Page  2, lines 24-27, and asked                                                               
for an explanation  to the amendment percentage of 1  to 6, or 16                                                               
percent, which  was substantially higher  than the DHSS  ratio of                                                               
10 percent.                                                                                                                     
MR. JOHNSON replied  that the 1 to 6 ratio  conformed to the norm                                                               
of other states.                                                                                                                
3:43:54 PM                                                                                                                    
REPRESENTATIVE SEATON asked who suggested this ratio.                                                                           
MR. JOHNSON replied that Myra Munson supplied that language.                                                                    
3:44:15 PM                                                                                                                    
REPRESENTATIVE  SEATON asked  for supporting  data to  this lower                                                               
level, as it did not agree with the DHSS suggested ratio.                                                                       
3:44:46 PM                                                                                                                    
CO-CHAIR KELLER  announced that the  objection to  the amendment,                                                               
labeled  C.3, would  remain  while the  House  Health and  Social                                                               
Services Standing Committee listened to public testimony.                                                                       
3:45:23 PM                                                                                                                    
JEFF JESSEE, Chief Executive Officer,  Alaska Mental Health Trust                                                               
Authority,  Department   of  Revenue   (DOR),  opined   that  the                                                               
amendment discussion  was proof  that trying to  write regulation                                                               
into statute was  not a good idea.  He  pointed out the disparity                                                               
in  suggested ratio  mentioned  earlier was  an  example of  poor                                                               
process.  He noted that  DHSS Commissioner Hogan had committed to                                                               
work on these  regulations.  He suggested that DHSS  be given the                                                               
opportunity  to respond  over the  interim, and  if DHSS  had not                                                               
made satisfactory progress, to move  forward with the bill during                                                               
the next session.                                                                                                               
CO-CHAIR KELLER  replied that DHSS  had not yet responded  with a                                                               
3:48:12 PM                                                                                                                    
REPRESENTATIVE CISSNA  asked what AMHTA  was doing for  the Bring                                                               
The  Kids Home  program.   She  asked specifically  if AMHTA  had                                                               
discussed  the  workforce  shortages,  analyzed  the  needs,  and                                                               
offered any suggestions.                                                                                                        
MR. JESSEE, in  response to Representative Cissna,  said that the                                                               
work group met regularly, discussed  these issues, and had placed                                                               
an emphasis on  work force development, not just  the RPTC levels                                                               
of care.   He allowed that it was challenging  for AMHTA and DHSS                                                               
to  work  on  everything  at   once.    He  reported  that  these                                                               
regulations  were a  priority, in  order to  recruit people  with                                                               
reasonable qualifications.  He explained  that the Bring the Kids                                                               
Home program had invested in  work force development.  He pointed                                                               
out that the work force would  review what other states had done,                                                               
and would report back to the  committee with a set of regulations                                                               
that would meet the needs of the kids and the providers.                                                                        
3:52:18 PM                                                                                                                    
MYRA  MUNSON,  Attorney,  The  Boys and  Girls  Home  of  Alaska,                                                               
reiterated that  there was  an ongoing  problem of  hiring enough                                                               
direct care  providers.   She noted that  a Fairbanks  RPTC would                                                               
need variances, or passage of HB  223, for hiring its staff.  She                                                               
opined that  the amendment, labeled  C.3, reflected  a reasonable                                                               
standard,  based upon  her  research and  past  experience.   She                                                               
explained the reasons for the  staffing standards.  She expressed                                                               
her  trust for  DHSS and  AMHTA  intent, but  reflected that  the                                                               
process could  be interminably  slow.  She  proposed that  HB 223                                                               
should be passed,  take immediate effect, and have  an August 15,                                                               
2009, repeal date.  She reported  that it took nine months for an                                                               
assisted  living regulation  to take  effect after  the published                                                               
first  notice, and  that it  was  thirteen months  for a  barrier                                                               
crimes regulation.   She pointed out  that the first notice  of a                                                               
Medicaid   re-write  was   published  in   July,  2006,   with  a                                                               
supplemental notice  published in September, 2008,  and there was                                                               
still not a published regulation.   She agreed that this work was                                                               
hard,  and that  there were  a  lot of  issues for  review.   She                                                               
reported that  there was  currently a "real  life problem  with a                                                               
real life  provider who received  a Certificate of Need  from the                                                               
state."    She reported  that  without  sufficient response,  the                                                               
ability to  provide care would  be compromised.  She  expressed a                                                               
lack of  confidence that variance  would solve the problem.   She                                                               
suggested that HB 223 should be  passed, with a sunset clause for                                                               
one year.   She  referred to  the fiscal  note, and  relayed that                                                               
Alaska  Children's Services  (ACS)  had  offered its  residential                                                               
care training  program, which  met the  current standard,  to any                                                               
other providers at no charge.                                                                                                   
4:00:54 PM                                                                                                                    
REPRESENTATIVE COGHILL asked how  many individual variances would                                                               
be requested by the Fairbanks RPTC.                                                                                             
MS. MUNSON  replied that she did  not know about the  process for                                                               
granting variances, but  that she had heard the  ACS testimony of                                                               
refusal to its variance request.                                                                                                
REPRESENTATIVE  COGHILL replied  that DHSS  had testified  that a                                                               
variance was available.   He asked if The Boys  and Girls Home of                                                               
Alaska had applied for a variance.                                                                                              
4:01:42 PM                                                                                                                    
MS. MUNSON said that one variance  was pending, but not in regard                                                               
to the  direct care giver staff.   She relayed that  the Boys and                                                               
Girls  Home was  waiting for  a DHSS  report that  identified the                                                               
DHSS concerns.                                                                                                                  
4:02:26 PM                                                                                                                    
REPRESENTATIVE COGHILL  observed that  DHSS should  be questioned                                                               
about responding.   He suggested that The Boys and  Girls Home of                                                               
Alaska should immediately apply for a variance.                                                                                 
4:02:58 PM                                                                                                                    
MS. MUNSON reported that the  variance process was described as a                                                               
regulatory process.   She opined that The Boys and  Girls Home of                                                               
Alaska and DHSS needed to develop a collaborative relationship.                                                                 
4:04:04 PM                                                                                                                    
REPRESENTATIVE COGHILL  noted that there appeared  to be economic                                                               
MS.  MUNSON replied  that  she  was not  aware  of any  financial                                                               
sanctions.  She  stated that it was a necessary  facility, it was                                                               
granted a 44 bed Certificate of  Need, and it would close without                                                               
Medicaid approval, which was contingent on the licensing.                                                                       
4:05:04 PM                                                                                                                    
CO-CHAIR KELLER said that this had been an ongoing process.                                                                     
4:05:35 PM                                                                                                                    
CO-CHAIR HERRON  asked if the  "statutory fix" would  alleviate a                                                               
cash flow problem for The Boys and Girls Home of Alaska.                                                                        
MS.  MUNSON said  that the  bill was  not necessary  for economic                                                               
protection,  except to  make The  Boys and  Girls Home  of Alaska                                                               
eligible for  the care payments  that other RPTCs received.   She                                                               
affirmed that HB 223 was  a quicker, more effective, more certain                                                               
means than  the variance  process.  She  related that  the motive                                                               
would be to stay open and provide quality care.                                                                                 
4:07:03 PM                                                                                                                    
CO-CHAIR  HERRON opined  that a  "statutory fix"  would give  The                                                               
Boys and Girls Home of Alaska a better cash flow.                                                                               
MS. MUNSON replied  that HB 223 would allow them  to provide care                                                               
consistent with state requirements.                                                                                             
4:07:26 PM                                                                                                                    
CO-CHAIR   KELLER  said   that  DHSS   was  determined   to  work                                                               
collaboratively with The Boys and Girls Home of Alaska.                                                                         
4:07:42 PM                                                                                                                    
REPRESENTATIVE CISSNA asked if The  Boys and Girls Home of Alaska                                                               
was operating in good standing.                                                                                                 
MS.  MUNSON replied  that, to  her knowledge,  DHSS had  taken no                                                               
action  to revoke  its  license.   She  confirmed  that they  had                                                               
received a letter  from Medicaid stating a  necessity for further                                                               
training and  monitoring.  She  acknowledged that there  had been                                                               
start up  problems which needed to  be fixed, and that  there was                                                               
an ongoing  staffing review.   She  emphasized that  the staffing                                                               
requirements were higher  than The Boys and Girls  Home of Alaska                                                               
had been able to meet.                                                                                                          
MS. MUNSON, in  response to Representative Cissna,  said that the                                                               
only effect of the bill would be  for staffing to be based on the                                                               
new standard.                                                                                                                   
4:10:58 PM                                                                                                                    
REPRESENTATIVE SEATON  asked about  the economic impact  of going                                                               
out of  business for lack of  Medicaid funding as opposed  to the                                                               
economic impact of  a few caregivers with  a different experience                                                               
level.  He asked for a clarification.                                                                                           
4:11:38 PM                                                                                                                    
MS. MUNSON  explained that this was  a 44 bed unit,  with only 33                                                               
percent  of  the  staff meeting  the  existing  direct  caregiver                                                               
licensing  standards.   She noted  that fewer  staff resulted  in                                                               
fewer  available beds.   She  indicated that  the facility  had a                                                               
financial breakeven number for occupied  beds, in order to remain                                                               
REPRESENTATIVE  SEATON   responded  that   this  was   the  first                                                               
notification that  only one third  of the staff met  the existing                                                               
requirements.    He  asked for  clarification  for  the  proposed                                                               
Section 3, contained in the amendment, labeled C.3.                                                                             
MS.  MUNSON, in  response  to Representative  Seaton, noted  that                                                               
testimony  during SB  32 had  affirmed that  a solution  was best                                                               
attained  through   regulation.    She  pointed   out  that  many                                                               
testifiers had admitted  that there was a  long standing problem.                                                               
She  explained  that Section  3  allowed  an operative  one  year                                                               
window,  which would  then be  repealed.   She  pointed out  that                                                               
during  the  interim, DHSS  could  write  new regulations,  which                                                               
would go into effect after April 15, 2010.                                                                                      
4:16:54 PM                                                                                                                    
PAT  HEFLEY, Deputy  Commissioner,  Office  of the  Commissioner,                                                               
Department  of Health  and Social  Services (DHSS),  acknowledged                                                               
that DHSS  was asked  to re-write  regulations in  24 hours.   He                                                               
shared  that his  team met,  collected  documents, and  concluded                                                               
that the  responsibility was  to keep the  places safe,  to bring                                                               
the  kids  home,  and  to  work with  the  private  agencies  for                                                               
success.  He relayed that DHSS  did not know about these specific                                                               
work  force shortages.    He reiterated  an  earlier stated  DHSS                                                               
mission for  workforce development.   He  shared that  there were                                                               
many  more issues  than  could  be addressed  in  24  hours.   He                                                               
stressed that DHSS was serious  about its mission, and he offered                                                               
his belief  that DHSS had systems  to address most of  the issues                                                               
concerned.   He confirmed that  DHSS had a variance  system which                                                               
approved  almost 100  percent of  requested variances.   He  said                                                               
that  DHSS had  offered  The  Boys and  Girls  Home  of Alaska  a                                                               
variance the prior October.                                                                                                     
REPRESENTATIVE COGHILL asked for a definition to that variance.                                                                 
4:20:42 PM                                                                                                                    
MR. HEFLEY  said that  currently there  was not  an institutional                                                               
variance  for  employment.    He acknowledged  that  it  was  not                                                               
unusual for a  work force challenge, and that there  was a system                                                               
for accommodation  to individuals.   He shared that  a conclusion                                                               
of the recent work group was for  a return to the principles.  He                                                               
acknowledged a work  force shortage in this particular  area.  He                                                               
expressed a desire for DHSS to  work with the provider groups and                                                               
the  family  members, and  to  review  the issues  and  requested                                                               
changes.  He  explained that he did  not want to put  the kids at                                                               
risk for  a year.  He  requested to maintain the  current system,                                                               
while working  to build a  new system  during the next  9 months.                                                               
He offered  a letter outlining  this plan from  the commissioner,                                                               
which read in part:                                                                                                             
     The department commits to  enhancing and expediting the                                                                    
     process  by which  a residential  psychiatric treatment                                                                    
     center  can  apply  for  and obtain  a  decision  on  a                                                                    
     variance      application      regarding      caregiver                                                                    
     qualifications.       The    department   commits    to                                                                    
     promulgating  and adopting  new regulations  by January                                                                    
     19, 2010, related to  the qualifications for caregivers                                                                    
     in  residential  psychiatric  treatment centers.    The                                                                    
     department commits  to reporting to the  legislature on                                                                    
     August  1,  2009,  and  November   1,  2009,  with  the                                                                    
     department's progress in  promulgating and adopting the                                                                    
     aforementioned regulations.   The department commits to                                                                    
     the report  that shall provide information  relating to                                                                    
     all  of the  efforts  that  we have  done  in terms  of                                                                    
     soliciting   input   from   agency   provider   groups,                                                                    
     families, and other  shareholders efforts in developing                                                                    
     and  expanding  the  caregiver workforce  pool  through                                                                    
     increasing options  for people to obtain  DHSS approved                                                                    
     training and  information on the standards  and we will                                                                    
     evaluate  and  change  the  regulations  pertaining  to                                                                    
     information  on  the  standards  in  other  states  for                                                                    
     education   and   training   for   qualifications   for                                                                    
     caregiver   staff    and   requirements    for   direct                                                                    
     supervision, mentoring, and staffing ratios.                                                                               
He added that this plan would not be a huge document.                                                                           
4:26:37 PM                                                                                                                    
CO-CHAIR HERRON  remarked that the  legislative process  could be                                                               
clumsy, and he asked  if this would still be in  effect if HB 223                                                               
did not become law.                                                                                                             
MR.  HEFLEY,  in response  to  Co-Chair  Herron, said  that  DHSS                                                               
wanted to make  an improvement, and that this issue  needed to be                                                               
4:27:23 PM                                                                                                                    
CO-CHAIR  HERRON  asked if  this  was  an accelerated  regulatory                                                               
process,  or in  any  way different  than  the normal  regulatory                                                               
MR. HEFLEY  responded that it  was a priority, and  would receive                                                               
special attention.                                                                                                              
4:28:21 PM                                                                                                                    
REPRESENTATIVE CISSNA  remarked that  the upcoming interim  was a                                                               
time for  the committee to  help develop a system  for healthier,                                                               
shorter stays.                                                                                                                  
MR. HEFLEY  voiced appreciation  for the  comment, but  said that                                                               
DHSS did  not want  to redesign  the entire  Bring the  Kids Home                                                               
program.   He agreed that there  would be a separate  process for                                                               
addressing the issues she advocated.                                                                                            
4:30:28 PM                                                                                                                    
REPRESENTATIVE CISSNA asked if The  Boys and Girls Home of Alaska                                                               
was operating in  good standing.  She also asked  if HB 223 would                                                               
affect any action or consideration  from DHSS toward The Boys and                                                               
Girls Home of Alaska.                                                                                                           
MR. HEFLEY suggested that the DHSS attorney respond.                                                                            
4:32:19 PM                                                                                                                    
STACIE  KRALY,   Chief  Assistant  Attorney   General;  Statewide                                                               
Section Chief,  Human Services Section, Civil  Division (Juneau),                                                               
Department of  Law (DOL), in  response to  Representative Cissna,                                                               
said that  The Boys and Girls  Home of Alaska was  currently open                                                               
and operating.   She revealed that it had been  issued a sanction                                                               
letter under the state Medicaid  program which was related to the                                                               
programmatic  side of  caregiver qualifications.   She  indicated                                                               
that a report was forthcoming  on a licensing investigation.  She                                                               
responded to the second question  from Representative Cissna, and                                                               
replied that the bill, as  originally proposed, had a retroactive                                                               
provision, which  would have nullified  any action by DHSS.   She                                                               
opined  that removal  of the  transitional language,  should this                                                               
bill pass and  a licensing action take place, could  be used as a                                                               
defense against any licensing enforcement action from DHSS.                                                                     
4:33:58 PM                                                                                                                    
REPRESENTATIVE SEATON  opined that  this bill  did not  solve the                                                               
MR. HEFLEY,  in response to  Representative Seaton, said  that he                                                               
was correct  in his assessment.   He said that the  intent was to                                                               
find a  solution.  He explained  that DHSS wanted the  kids to be                                                               
4:38:05 PM                                                                                                                    
CO-CHAIR KELLER reminded  Mr. Hefley to send the  letter from the                                                               
DHSS Commissioner.                                                                                                              
4:39:43 PM                                                                                                                    
The gavel was passed from Co-Chair Keller to Co-Chair Herron.                                                                   
The committee took an at-ease from 4:39 p.m. to 4:40 p.m.                                                                       
4:40:54 PM                                                                                                                    
[The  proposed  amendment,  labeled  C.3, was  held  for  further                                                               
[HB 223 was held over.]                                                                                                         
The committee took an at-ease from 4:40 p.m. to 4:42 p.m.                                                                       

Document Name Date/Time Subjects
50.PDF HHSS 4/11/2009 3:00:00 PM