Report Title:

Department of Aging and Long-Term Care

 

Description:

Establishes a department of aging and long-term care.

 

THE SENATE

S.B. NO.

2164

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to a department of aging and long-term care.

 

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

SECTION 1. The legislature finds that in 1993, the population of persons aged sixty-five and over was 136,600, or sixteen per cent of the adult population in Hawaii. By the year 2020, persons aged sixty-five and over will constitute over one-fourth of Hawaii's adult population, and nearly one-third of this group are expected to be disabled. Average annual nursing home charges in Hawaii already are almost twice the average annual disposable income for Hawaii's elderly families. Annual cash outlays for nursing home care by Hawaii families are expected to increase significantly over current costs by the year 2020, with the average cost for one year of nursing home care reaching more than $200,000.

Unless strategies are adopted to make long-term care affordable, families paying for nursing home care increasingly will be forced to deplete their savings and other non-housing assets and face impoverishment. This will pose severe adverse ramifications for the well-being of families young and old, for the State (which will bear much of the burden of paying for long-term care through its Medicaid program), and for society in general. Unfortunately, private long-term care insurance policies currently available generally are not affordable and typically offer very restricted coverage.

Accordingly, the purpose of this Act is to establish within the executive branch of state government a new department of aging and long-term care to address these and related issues concerning Hawaii's elderly and disabled populations, consistent with the power of the State to "provide for the security of the elderly by establishing and promoting programs to assure their economic and social well-being" under article IX, section 4 of the Hawaii constitution, and the State's policy to promote "alternatives to institutional care in the provision of long-term care for elder and disabled populations", as provided in section 226-22(b)(4), Hawaii Revised Statutes.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

DEPARTMENT OF AGING AND LONG-TERM CARE

§   -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Activities of daily living" include the six basic self- activities of eating, bathing, dressing, transferring from bed to chair, bowel and bladder control, and independent ambulation.

"Department" means the department of aging and long-term care.

"Long-term care" means any array of non-acute services needed by individuals who have lost some capacity for independence because of a chronic illness or condition. "Long-term care" includes assistance with basic activities of daily living; skilled and therapeutic care for the treatment and management of chronic conditions; and services that can be provided in a variety of settings, including the individual's home, the community, or an institution. "Long-term care" does not include services normally provided in the acute care unit of a hospital or to services normally paid for by basic Medicare supplemental coverage, basic hospital expense coverage, basic medical-surgical expense coverage, hospital confinement coverage, major medical expense coverage, or specified disease or specified accident coverage.

§   -2 Powers and duties of the department of aging and long-term care. The department of aging and long-term care shall effectively administer the State's aging and long-term care programs. To carry out these responsibilities, the department shall:

(1) Develop policies and coordinate the planning and implementation of state programs relating to aging and long-term care;

(2) Develop, implement, and continuously update a comprehensive action plan for aging and long-term care, including:

(A) Identification of state goals, objectives, and implementing actions for programs on aging and long-term care;

(B) Defining the roles and responsibilities of all affected agencies in carrying out programs on aging and long-term care-related goals and objectives;

(C) Including programs that address the future needs of Hawaii's citizens relating to aging and long-term care; and

(D) Including a public education strategy to develop consciousness of the need for improved programs on aging and long-term care in this State;

(3) Encourage activities consistent with this chapter by advising and assisting county governments, institutions, and individuals;

(4) Undertake a public information and education program to inform and involve public and private organizations and groups about laws as they apply to aging and long-term care programs in the State;

(5) As necessary and appropriate, conduct investigations, hold hearings, and compel the attendance of witnesses and the production of accounts, books, documents, and nondocumentary evidence by the issuance of a subpoena;

(6) Act as the official agency of the State in all matters affecting the purposes of the department under any federal laws now or hereafter enacted, and as the official agency of a county in connection with the grant or advance of any federal or other funds or credits to the State or through the State to its local governing bodies;

(7) Submit directly to the governor and to the legislature bills and administrative policies, objectives, and actions as may be necessary relating to programs on aging and long-term care in this State;

(8) Establish an aging and long-term care research program to investigate issues of importance to the State;

(9) Subject to the appropriation of state funds and the availability of federal matching assistance, expand optional health care to low-income elderly persons and others in need of long-term care;

(10) Provide for the licensing of adult residential care homes;

(11) Provide for the administration of day care centers for disabled and aged persons and dependent adult protective services; and

(12) Conduct such other activities as are consistent with the purposes of this chapter.

§ -3 Long-term care; additional duties of the department. In addition to the powers and duties specified under section -2, the department shall also specifically review long-term care programs in this State and determine ways to effectively increase the availability of long-term care services and benefits to the elderly and disabled, including:

(1) Primary institutional long-term care benefits:

(A) Skilled nursing facility stays, including:

(i) Skilled nursing services; and

(ii) Skilled rehabilitation services;

(B) Intermediate care nursing facility stays, including:

(i) Skilled nursing services;

(ii) Restorative services; and

(iii) Assistance with activities of daily living;

(2) Primary noninstitutional long-term care benefits:

(A) Home health care, including:

(i) Skilled nursing services;

(ii) Physical therapy;

(iii) Occupational therapy;

(iv) Speech therapy;

(v) Medical social services; and

(vi) Home health aide care;

(B) Home care, including:

(i) Personal care services; and

(ii) Respite care up to fourteen days each program year;

(C) Community-based care, including:

(i) Adult day care services related to impairment;

(ii) Adult day health services related to impairment; and

(iii) Adult residential care home placements;

(D) Services for mental and nervous disorders related to organic brain syndromes, including Alzheimer's disease, Parkinson's disease, epilepsy, and senile dementia; and

(E) Alternative care involving the assembly, management, and delivery of equivalent or comparable alternative skilled services in noninstitutional settings;

(3) Associated noninstitutional long-term care benefits:

(A) Homemaker services;

(B) Companion service;

(C) Home meal delivery; and

(D) Chore services; and

(4) Other long-term care services to reflect new developments in modalities of care and other pertinent changes.

§   -4 Rules. The department shall adopt rules pursuant to chapter 91 necessary for the purposes of this chapter.

§   -5 Cooperation from other agencies. All state and county agencies shall cooperate with the department and render all assistance requested by the department in carrying out the purposes of this chapter."

SECTION 3. Chapter 26, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§26-   Department of aging and long-term care. The department of aging and long-term care shall be headed by a single executive to be known as the director of aging and long-term care.

The department of aging and long-term care shall have primary jurisdiction over all matters relating to the administration of the State's aging and long-term care programs, except as otherwise provided by law.

The functions and authority heretofore exercised solely by the department of health with respect to the licensing of adult residential care homes shall be transferred to the department of aging and long-term care.

The functions and authority heretofore exercised solely by the department of human services with respect to day care centers for disabled and aged persons and dependent adult protective services shall be transferred to the department of aging and long-term care."

SECTION 4. Section 26-52, Hawaii Revised Statutes, is amended to read as follows:

"§26-52 Department heads and executive officers. The salaries of the following state officers shall be as follows:

(1) The salary of the superintendent of education shall be set by the board of education at a rate no greater than $150,000 a year;

(2) The salary of the president of the University of Hawaii shall be set by the board of regents;

(3) The salaries of all department heads or executive officers of the departments of accounting and general services, aging and long-term care, agriculture, attorney general, budget and finance, business, economic development, and tourism, commerce and consumer affairs, Hawaiian home lands, health, human resources development, human services, labor and industrial relations, land and natural resources, public safety, taxation, and transportation shall be $85,302 a year; and

(4) The salary of the adjutant general shall be $85,302 a year; provided that if this salary is in conflict with the pay and allowance fixed by the tables of the regular army or air force of the United States, the latter shall prevail."

SECTION 5. Section 321-15.6, Hawaii Revised Statutes, is amended to read as follows:

"§321-15.6 Adult residential care homes; licensing. (a) All adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein.

(b) The director shall adopt rules regarding adult residential care homes in accordance with chapter 91 which shall be designed to:

(1) Protect the health, safety, and civil rights of persons residing in facilities regulated;

(2) Provide for the licensing of adult residential care homes; provided that the rules shall allow group living in two categories of adult residential care homes as licensed by the department [of health]:

(A) Type I allowing group living by five or fewer unrelated persons; and

(B) Type II allowing six or more persons including but not limited to the mentally ill, elders, the handicapped, the developmentally disabled, or totally disabled persons who are not related to the home operator or facility staff.

For purposes of this section:

"Mentally ill person" means a mentally ill person as defined under section 334-1.

"Elder" means an elder as defined under sections 201G-1 and 201G-151.

"Handicapped person" means an individual with a physical handicap as defined under section 515-2.

"Developmentally disabled person" means a person with developmental disabilities as defined under section 333F-1.

"Totally disabled person" means a person totally disabled as defined under section 235-1;

(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.

(c) The department may provide for the training of and consultations with operators and staff of any facility licensed under this section, in conjunction with any licensing thereof, and shall adopt rules to ensure that adult residential care home operators shall have the needed skills to provide proper care and supervision in a home environment as required under department rules.

(d) The department shall establish a standard admission policy and procedure which shall require the provision of information that includes the appropriate medical and personal history of the patient as well as the level of care needed by the patient prior to the patient's referral and admission to any adult residential care home facility. The department shall develop appropriate forms and patient summaries for this purpose.

(e) The department shall maintain an inventory of all facilities licensed under this section and shall maintain a current inventory of vacancies therein to facilitate the placement of individuals in such facilities.

(f) The department shall develop and adopt a social model of health care to ensure the health, safety, and welfare of individuals placed in adult residential care homes. The model of care shall be designed to protect the health, safety, civil rights, and rights of choice of the persons to reside in a nursing facility or in home-or community-based care.

(g) As used in this section:

"Department" means the department of aging and long-term care.

"Director" means the director of aging and long-term care."

SECTION 6. Section 346-14, Hawaii Revised Statutes, is amended to read as follows:

"§346-14 Duties generally. Except as otherwise provided by law, the department of human services shall:

(1) Establish and administer programs and standards, and adopt rules as deemed necessary for all public assistance programs;

(2) Establish, extend, and strengthen services for the protection and care of abused or neglected children and children in danger of becoming delinquent to make paramount the safety and health of children who have been harmed or are in life circumstances that threaten harm;

(3) Establish and administer programs, and adopt rules as deemed necessary, for the prevention of domestic and sexual violence and the protection and treatment of victims of domestic and sexual violence;

(4) Assist in preventing family breakdown;

(5) Place, or cooperate in placing, abused or neglected children in suitable private homes or institutions and place, or cooperate in placing, children in suitable adoptive homes;

(6) Have authority to establish, maintain, and operate receiving homes for the temporary care and custody of abused or neglected children until suitable plans are made for their care; and accept from the police and other agencies, for temporary care and custody, any abused or neglected child until satisfactory plans are made for the child;

(7) Administer the medical assistance programs for eligible public welfare and other medically needy individuals by establishing standards, eligibility, and health care participation rules, payment methodologies, reimbursement allowances, systems to monitor recipient and provider compliance, and assuring compliance with federal requirements to maximize federal financial participation;

(8) Cooperate with the federal government in carrying out the purposes of the Social Security Act and in other matters of mutual concern pertaining to public welfare, public assistance, and child welfare services, including the making of reports, the adoption of methods of administration, and the making of rules as are found by the federal government, or any properly constituted authority thereunder, to be necessary or desirable for the efficient operation of the plans for public welfare, assistance, and child welfare services or as may be necessary or desirable for the receipt of financial assistance from the federal government;

(9) Carry on research and compile statistics relative to public and private welfare activities throughout the State, including those dealing with dependence, defectiveness, delinquency, and related problems;

(10) Develop plans in cooperation with other public and private agencies for the prevention and treatment of conditions giving rise to public welfare problems;

(11) Adopt rules governing the procedure in hearings, investigations, recording, registration, determination of allowances, and accounting and conduct other activities as may be necessary or proper to carry out this chapter;

(12) Supervise or administer any other activities authorized or required by this chapter, including the development of the staff of the department through in-service training and educational leave to attend schools and other appropriate measures, and any other activities placed under the jurisdiction of the department by any other law;

(13) Make, prescribe, and enforce policies and rules governing the activities provided for in section 346-31 it deems advisable, including the allocation of moneys available for assistance to persons assigned to work projects among the several counties or to particular projects where the apportionment has not been made pursuant to other provisions of law, if any, governing expenditures of the funds;

(14) Determine the appropriate level for the Hawaii security net, by developing a tracking and monitoring system to determine what segments of the population are not able to afford the basic necessities of life, and advise the legislature annually regarding the resources required to maintain the security net at the appropriate level;

(15) Subject to the appropriation of state funds and availability of federal matching assistance, expand optional health care to low-income persons as follows:

(A) Pregnant women and infants under one year of age living in families with incomes up to one hundred eighty-five per cent of the federal poverty level and without any asset restrictions;

(B) Children under six years of age living in families with incomes up to one hundred thirty-three per cent of the federal poverty level and without any asset restrictions;

(C) Older children to the extent permitted under optional federal medicaid rules;

[(D) Elder persons;]

[(E)] (D) Aliens;

[(F)] (E) The homeless; and

[(G)] (F) Other handicapped and medically needy persons; and

(16) Subject to the appropriation of state funds and availability of federal matching assistance, establish the income eligibility level for the medically needy program at one hundred thirty-three per cent of the assistance allowance."

SECTION 7. Section 346-81, Hawaii Revised Statutes, is amended to read as follows:

"§346-81 Purpose. The purpose of this subpart is to establish the nature and type of services to elders, disabled, and aged who are qualified to receive social services according to standards and conditions prescribed by the department of [human services.] aging and long-term care."

SECTION 8. Section 346-82, Hawaii Revised Statutes, is amended to read as follows:

"§346-82 Definitions. (a) As used in this subpart:

[(2)] "Day care center for elder disabled and aged persons" means a place maintained and operated by an individual, organization, or agency for the purpose of providing supportive and protective care to a disabled or aged person with or without charging a fee during the attendant working day. The term "day care center" includes place designated for group care for four or more adults or a family home providing care for two or three adults. The term "disabled and aged persons" refers to persons who live with a spouse, relative, or friend but who require temporary supervision and care during the absence of people from the home or residence.

"Department" means the department of aging and long-term care.

[(1)] "Elder" means any person as may otherwise be defined by the department, who desires and needs counseling, guidance, and assistance to modify or resolve the social, economic, educational, recreational, physical, or mental problem that impedes the person's personal functioning and well-being.

(b) Nothing in section 346-83 shall be construed to include a relative caring for another relative; a neighbor or friend caring for an adult by mutual choice and agreement; or any center or facility conducted primarily or solely for educational, social, recreational, athletic or other group functions that may provide for twenty-four-hour boarding, personal, or nursing care accommodation."

SECTION 9. Section 346-222, Hawaii Revised Statutes, is amended to read as follows:

"[[]§346-222[]] Definitions. As used in this part, unless the context clearly requires otherwise:

"Abuse" means actual or imminent physical injury, psychological abuse or neglect, sexual abuse, financial exploitation, negligent treatment, or maltreatment as further defined in this chapter.

Abuse occurs where:

(1) Any dependent adult exhibits evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Any injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) A burn or burns;

(E) Poisoning;

(F) The fracture of any bone;

(G) A subdural hematoma;

(H) Soft tissue swelling;

(I) Extreme physical pain; or

(J) Extreme mental distress which includes a consistent pattern of actions or verbalizations including threats, insults, or harassment, that humiliates, provokes, intimidates, confuses, and frightens the dependent adult;

and the injury is not justifiably explained, or where the history given is at variance with the degree or type of injury, or circumstances indicate that the injury is not the product of an accidental occurrence;

(2) Any dependent adult has been the victim of nonconsensual sexual contact or conduct, including but not limited to:

(A) Sexual assault, molestation, sexual fondling, incest, prostitution;

(B) Obscene or pornographic photographing, filming, or depiction; or

(C) Other similar forms of sexual exploitation;

(3) Any dependent adult is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision;

(4) Any dependent adult is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; however, this paragraph shall not apply when such drugs are provided to the dependent adult pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a caregiver would exercise, including, but not limited to, failure to:

(A) Assist in personal hygiene;

(B) Provide necessary food, shelter, and clothing;

(C) Provide necessary health care, access to health care, or prescribed medication;

(D) Protect a dependent adult from health and safety hazards; or

(E) Protect against acts of abuse by third parties;

(6) Any dependent adult appears to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the dependent adult's person, and appears to be exposed to a situation or condition which poses an imminent risk of death or risk of serious physical harm; or

(7) There is financial and economic exploitation. For the purpose of this part, "financial and economic exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of a dependent adult's money, real property, or personal property. "Financial and economic exploitation" can include but is not limited to:

(A) Breaches of fiduciary relationships such as the misuse of a power of attorney or the abuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;

(B) The unauthorized taking of personal assets;

(C) The misappropriation, misuse, or transfer of moneys belonging to the dependent adult from a personal or joint account; or

(D) The intentional or negligent failure to effectively use a dependent adult's income and assets for the necessities required for the person's support and maintenance.

The exploitations may involve coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.

"Capacity" means the ability to understand and appreciate the nature and consequences of making decisions concerning one's person or to communicate such decisions.

"Court" means the family court having jurisdiction over a matter under this part.

"Department" means the department of [human services] of aging and long-term care and its authorized representatives.

"Dependent adult" means any adult who, because of mental or physical impairment is dependent upon another person, a care organization, or a care facility for personal health, safety, or welfare.

"Emergency medical treatment" means those services necessary to maintain a person's physical health and without which there is a reasonable belief that the person will suffer irreparable harm or death.

"Imminent abuse" means that there exists reasonable cause to believe that abuse will occur or recur within the next ninety days.

"Party" means those persons, care organizations, or care facilities entitled to notice of proceedings under sections 346-237 and 346-238, including any state department or agency that is providing services and treatment to a dependent adult in accordance with a protective services plan.

"Protective services plan" means a specific written plan, prepared by the department, setting forth the specific services and treatment to be provided to a dependent adult."

SECTION 10. Section 349-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) There is established within the [office of the governor,] department of aging and long-term care, an executive office on aging."

SECTION 11. Section 431:10H-106, Hawaii Revised Statutes, is amended to read as follows:

"[[]431:10H-106[]] Rules. The commissioner, with the assistance of the director of aging and long-term care, may adopt rules that include standards for full and fair disclosure setting forth the manner, content, and required disclosures for the sale of long-term care insurance policies, terms of renewability, initial and subsequent conditions of eligibility, non-duplication of coverage provisions, coverage of dependents, preexisting conditions, termination of insurance, continuation or conversion, probationary periods, limitations, exceptions, reductions, elimination periods, requirements for replacement, recurrent conditions, and definition of terms."

SECTION 12. The department of aging and long-term care shall work with the board of trustees of the public employees health fund under chapter 87, Hawaii Revised Statutes, and the successor board of trustees of the Hawaii employer-union health benefits trust fund upon the repeal of chapter 87 on July 1, 2003, by Act 88, Session Laws of Hawaii 2001, to ensure the availability of benefits, maximize benefit levels, and maintain flexibility in the types of benefits offered to public employees at the lowest costs to the State to maintain the solvency of that fund.

SECTION 13. All rights, powers, functions, and duties of the director of health and the department of health relating to adult residential care homes as specified in this Act are transferred to the director of aging and long-term care and the department of aging and long-term care, respectively.

All rights, powers, functions, and duties of the director of human services and the department of human services relating to day care centers for disabled and aged persons and dependent adult protective services as specified in this Act are transferred to the director of aging and long-term care and the department of aging and long-term care, respectively.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

In the event that an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

SECTION 14. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of health or the department of human services relating to the functions transferred to the department of aging and long-term care shall be transferred with the functions to which they relate.

SECTION 15. It is the intent of this Act not to jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor may modify the strict provisions of this Act, but shall promptly report any such modification with reasons therefor to the legislature at its next session thereafter for review by the legislature.

SECTION 16. All acts passed during this regular session of 2002, whether enacted before or after the passage of this Act, shall be amended to conform to this Act unless such acts specifically provide that this Act is being amended.

SECTION 17. Any rules adopted by the department of health or the department of human services for any program transferred to the department of aging and long-term care shall remain in force and effect, and may be enforced by the department of aging and long-term care, until such time as they are repealed by the adopting agency and new rules adopted by the department of aging and long-term care pursuant to chapter 91.

SECTION 18. During the period before the effective date of this Act, the governor, with the assistance of the department of health, the department of human services, and the executive office on aging, shall prepare an organizational and functional plan and budget for the new department and a plan for the orderly transition of the functions transferred by this Act. This budget shall be no less than two per cent of the state operating budget. The plans and budget shall be submitted to the legislature twenty days prior to the convening of the 2003 regular session of the legislature as part of the executive supplemental budget request.

SECTION 19. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 20. This Act shall take effect on July 1, 2004; provided that section 18 of this Act shall take effect upon approval.

INTRODUCED BY:

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