ARCH; 2-Yr Demonstration Proj

Creates 2-yr demonstration project on Oahu for review panel for
involuntary removal of an ARCH resident for abuse or neglect.
Effective upon approval, repealed 6/30/2001. (HB646, HD2)

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HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 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, which are
10 allowed to accommodate a maximum of five unrelated adults, are
11 based in the community and offer an important long-term care
12 alternative.
13      The legislature further finds that many Type I adult
14 residential care homes are engaged in time- and labor-intensive
15 twenty-four-hour care for their clients that is very demanding
16 and that their actions are sometimes misperceived or
17 misunderstood.  These Type I adult residential care home
18 operators often need to assist residents who are functionally
19 impaired to some degree.  However, care that is provided to a

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Page 2                                                     646
                                     H.B. NO.           H.D. 2

 1 person who has some sort of functional impairment, on occasion,
 2 may be misperceived as abusive if delivered in the same way to a
 3 person who is not functionally impaired.  For example, a
 4 caregiver shouting instructions at a resident who, unbeknownst to
 5 the person witnessing the behavior, is hard of hearing and whose
 6 hearing aid is being repaired at the time, may be misperceived by
 7 the unknowing neighbor as being abusive.
 8      Whenever accusations of wrongdoing are involved, equity must
 9 be maintained and parties on both sides of a dispute must be
10 given equal opportunity to make their cases.  It is, therefore,
11 the purpose of this Act to ensure that the rights of both the
12 care home resident and the care home operator are respected by
13 establishing a mechanism for equitable resolution in cases of
14 alleged abuse or neglect of a care home resident through a two
15 year demonstration project involving a review panel for
16 involuntary removal of clients from adult residential care homes.
17      SECTION 2.  Adult protective services; department of human
18 services; demonstration project; review panel for involuntary
19 removal of clients from adult residential care homes.  (a)  There
20 shall be within the department of human services, a two-year
21 adult protective services review panel for involuntary removal of
22 residents from adult residential care homes demonstration project
23 on the island of Oahu.

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Page 3                                                     646
                                     H.B. NO.           H.D. 2

 1      (b)  When an adult protective services referral is received
 2 by the department of human services regarding alleged abuse or
 3 neglect of a resident in an adult residential care home:
 4      (1)  The department of human services shall notify the
 5           department of health and keep the department of health
 6           informed of its actions;
 7      (2)  The department of human services shall investigate the
 8           alleged incident to determine whether or not the
 9           resident has been abused and needs protection; and
10      (3)  If the department of human services determines that
11           abuse or neglect has occurred and that removal from the
12           care home is necessary, the adult protective services
13           worker shall:
14           (A)  Discuss the removal from the care home with the
15                care home operator and the resident and obtain the
16                resident's consent to place the resident in
17                another appropriate facility;
18           (B)  If the resident has the capacity to make his or
19                her own decisions, the adult protective services
20                worker shall abide by the wishes of the resident
21                regarding where the resident wishes to live;
22           (C)  If the resident does not have the capacity to make
23                his or her own decisions, the adult protective

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Page 4                                                     646
                                     H.B. NO.           H.D. 2

 1                services worker shall contact the resident's
 2                guardian to obtain consent to place the resident
 3                in another appropriate facility;
 4           (D)  If the guardian cannot be contacted in a timely
 5                manner, the adult protective services worker shall
 6                place the resident in another appropriate facility
 7                and shall contact the guardian as soon as possible
 8                following the placement.  If the resident does not
 9                appear to have the capacity to make his or her own
10                decisions, and does not have a guardian, the adult
11                protective services worker shall consult with the
12                department of the attorney general regarding the
13                need for a court order for immediate protection;
14                and
15           (E)  If the resident has a case manager, the case
16                manager shall be notified of the actions taken by
17                the adult protective services worker and shall
18                take part in decisions regarding the resident as
19                appropriate.
20      (c)  The care home operator may request a review of the
21 removal of a resident if:
22      (1)  A resident who has the capacity to make his or her own
23           decisions is removed against the resident's wishes; or

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Page 5                                                     646
                                     H.B. NO.           H.D. 2

 1      (2)  The resident's guardian does not concur with the
 2           removal.
 3      (d)  A review shall not be granted if the resident's removal
 4 was ordered by the family court.
 5      (e)  The care home operator's request for a review shall be
 6 made to the adult protective services unit supervisor or the
 7 social worker on duty in the department of human services within
 8 twenty-four hours from the date of the resident's removal.  Upon
 9 receipt of the care home operator's request for a review, the
10 department of human services shall convene a review panel within
11 five working days.
12      (f)  The review panel shall consist of representatives from
13 the:
14      (1)  Department of human services;
15      (2)  Department of health;
16      (3)  Protection and Advocacy Agency of Hawaii;
17      (4)  Judiciary, office of the public guardian; and
18      (5)  Two adult residential care home operators who do not
19           reside in the same area as, and who do not have any
20           personal relationship with, the operator requesting a
21           review.  The two care home operators shall be chosen by
22           representatives of the United Group Home Operators and
23           the Alliance of Residential Care Administrators.

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Page 6                                                     646
                                     H.B. NO.           H.D. 2

 1      (g)  The review panel shall:
 2      (1)  Review a written summary submitted by the the adult
 3           protective services worker regarding the circumstances
 4           of the alleged incident of abuse or neglect;
 5      (2)  Review the oral or written summary of pertinent
 6           information presented by the care home operator
 7           requesting the review;
 8      (3)  Review the report of the Protection and Advocacy Agency
 9           of Hawaii after an interview with the resident; and
10      (4)  Decide whether the action taken by the department of
11           human services was warranted.
12      (h)  The review panel proceedings shall be audiotaped and
13 stored in the social services division of the department of human
14 services.  Copies of the review panel findings shall be
15 distributed to the following:
16      (1)  Director of human services;
17      (2)  Director of health;
18      (3)  Oahu adult and community care services section
19           administrator of the department of human services;
20      (4)  The care home operator requesting the review;
21      (5)  Each member of the review panel; and
22      (6)  The resident who is the subject of the alleged abuse or
23           neglect or the resident's guardian.

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Page 7                                                     646
                                     H.B. NO.           H.D. 2

 1      (i)  Pursuant to section 346-225, Hawaii Revised Statutes,
 2 all information presented during the review panel proceedings
 3 under this section shall be confidential and shall not be
 4 released except as otherwise required by law.  Any person who
 5 makes an unauthorized disclosure of information provided under
 6 this section shall be guilty of a misdemeanor.  Any information
 7 obtained during the review panel proceedings may be used in a
 8 family court proceeding brought under chapter 346, part X, Hawaii
 9 Revised Statutes.
10      (j)  The department of human services, assisted by the
11 department of health, shall evaluate the effectiveness of the
12 project and report its findings and recommendation to the
13 legislature no later than twenty days prior to the regular
14 session of 2001.
15      SECTION 3.   This Act shall take effect upon its approval
16 and shall be repealed on June 30, 2001.

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