Legislature(2009 - 2010)CAPITOL 106
04/11/2009 03:00 PM HEALTH & SOCIAL SERVICES
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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 document.] 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, provided (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 AS 47.32.055 is repealed.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 proposal. 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 duress. 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 open. 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 addressed. 4:27:23 PM CO-CHAIR HERRON asked if this was an accelerated regulatory process, or in any way different than the normal regulatory process. 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 problem. 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 safe. 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 discussion.] [HB 223 was held over.] The committee took an at-ease from 4:40 p.m. to 4:42 p.m.
HHSS 4/11/2009 3:00:00 PM