HOUSE OF REPRESENTATIVES

H.B. NO.

2150

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO AGING.

 

 

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

 


SECTION 1.  The legislature finds that the State’s long-term care ombudsman, currently based within the executive office on aging, plays a vital role in protecting the health, safety, welfare, and rights of older residents in long-term care facilities and the community.  The purpose and intent of the office of the long-term care ombudsman is to serve as a quasi-autonomous office to identify, investigate, and seek solutions to complaints and issues of vulnerable older residents.  Although the initial focus of the office of the long-term care ombudsman has been on long-term care facilities, the scope of the office's duties has broadened as the landscape of care services and settings has evolved.

The legislature further finds that the changing regulatory and practical environment in which the long-term care ombudsman carries out its duties requires revisions to the long-term care ombudsman law to ensure that the long-term care ombudsman has the autonomy, support, and broader parameters to meet the changing needs of Hawaii's long-term care consumers.

The legislature further finds that the State’s office of the long-term care ombudsman, established by the Older Americans Act, was intended to have a degree of autonomy, to allow it to effectively and impartially carry out its functions, including serving as an advocate for systemic policy issues.  According to the national long-term care ombudsman resource center, the primary role of long-term care ombudsmen is to advocate for long-term care consumers in response to individual complaints and to advocate for the broader concerns of consumers relating to the need for changes to the care delivery system on a systemic level.  This means recommending top-down changes to long-term care facilities, governmental agencies, organizations, and corporations as well as to policies, regulations, and laws to benefit long-term care consumers.

The purpose of this Act is to ensure that the office of the long-term care ombudsman remains able to address the needs of vulnerable individuals, regardless of their care setting, by:

     (1)  Decoupling the office of the long-term care ombudsman from the executive office on aging, which has an increasing role and workload in crafting and implementing long-term care policies and programs, and instead attaching it administratively to the state health planning and development agency, which also has administrative autonomy;

     (2)  Broadening the authority of the long-term care ombudsman to encompass long-term care facilities and other care settings; and

     (3)  Ensuring that the office of the long-term care ombudsman has appropriate access to all care settings subject to its jurisdiction.

     SECTION 2.  Chapter 323D, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART    .  OFFICE OF THE LONG-TERM CARE OMBUDSMAN

     §323D-A  Definitions.  For the purposes of this part:

     "Administrator" means the administrator of the state health planning and development agency established in section 323D-11.

     "Conflict of interest" includes:

     (1)  Any direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

     (2)  An ownership or investment interest in a long-term care facility or a long-term care service or an aging in place facility or an aging in place service;

     (3)  Employment by, or participation in the management of, a long-term care facility, long-term care service, aging in place facility, or aging in place service; and

     (4)  Receipt of, or the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility, long-term care service, aging in place facility, or aging in place service.

     "Long-term care facility" means any:

     (1)  Skilled nursing facility as defined in section 1819(a) of the Social Security Act, as amended;

     (2)  Nursing facility, as defined in section 1919(a) of the Social Security Act, as amended;

     (3)  Adult residential care home, including any expanded adult residential care home;

     (4)  Assisted living facility;

     (5)  Intermediate care facility as defined in section 1905(c) of the Social Security Act, as amended; and

     (6)  Other similar facility licensed or unlicensed by the State serving elders.

     "State agency" means the state health planning and development agency established in section 323D-11.

     §323D-B  Office of the long-term care ombudsman.  (a)  There is established the office of the long-term care ombudsman that shall be administratively attached effective July 1, 2019, to the state agency to protect the health, safety, welfare, and rights of residents of long-term care facilities and aging in place facilities in accordance with state and federal law.  The office of the long-term care ombudsman shall be headed by the long-term care ombudsman.

     (b)  The long-term care ombudsman shall:

     (1)  Be hired pursuant to chapter 76;

     (2)  Be free of conflict of interest;

     (3)  Have expertise and experience in the fields of long-term care and advocacy;

     (4)  Serve on a full-time basis; and

     (5)  Prepare an annual report in accordance with the federal Older Americans Act, as amended.

     (c)  The long-term care ombudsman, personally or through a designee, shall:

     (1)  Represent the interests of residents of long-term care facilities and aging in place facilities, individually and as a class, to:

         (A)  Protect their health, safety, welfare, and rights; and

         (B)  Promote improvement in the quality of care they receive and their quality of life;

     (2)  In accordance with priorities developed by the long-term care ombudsman, identify, investigate, and resolve complaints and quality of life issues, including complaints against providers of long-term care services and their representatives, made by or on behalf of residents of long-term care facilities and aging in place facilities relating to actions, inactions, or decisions that may adversely affect the health, safety, welfare, or rights of residents of long-term care facilities and aging in place facilities, including the appointment and activities of guardians and representative payees;

     (3)  Monitor and comment on the development and implementation of federal, state, and local laws, regulations, policies, and actions that pertain to the health, safety, welfare, or rights of residents of long-term care facilities and aging in place facilities, including the adequacy of long-term care facilities and services and aging in place facilities and services in the State, and recommend changes as necessary;

     (4)  Provide information as appropriate to public agencies regarding the problems of residents of long-term care facilities and aging in place facilities;

     (5)  Train volunteers and employees;

     (6)  Promote the development of citizen organizations to participate in the advocacy program;

     (7)  Establish procedures for appropriate access by the long-term care ombudsman to long-term care facilities and aging in place facilities and to residents of long-term care facilities and aging in place facilities;

     (8)  Establish procedures for appropriate access by the long-term care ombudsman to all resident records or portions thereof necessary for the long-term care ombudsman to evaluate the merits of a specific complaint or complaints; provided that resident records shall be divulged only with the written consent of the resident or the resident's legal representative;

     (9)  Establish procedures for appropriate access to files maintained by the long-term care ombudsman, except that the identity of any complainant or resident of a long-term care facility or an aging in place facility shall not be disclosed unless:

         (A)  The complainant or resident, or the complainant's or resident's legal representative, consents in writing to the disclosure;

         (B)  The complainant or resident consents orally and the consent is documented contemporaneously in writing by the long-term care ombudsman or designee; or

         (C)  The disclosure is required by court order;

    (10)  Provide technical support for the development of resident and family councils to help protect the health, safety, welfare, and rights of residents of long-term care facilities and aging in place facilities;

    (11)  Provide residents of long-term care facilities and aging in place facilities with:

         (A)  Information regarding how to obtain necessary services;

         (B)  Regular access to the office of the long-term care ombudsman at times deemed reasonable and necessary by the long-term care ombudsman; and

         (C)  Regular and timely responses to their complaints;

    (12)  Seek administrative, legal, or other remedies to carry out this part; and

    (13)  Carry out all other responsibilities as provided by state or federal law.

     (d)  The long-term care ombudsman shall establish procedures to ensure that all designees, employees, and volunteers are free of conflict of interest.

     (e)  The long-term care ombudsman shall adopt rules pursuant to chapter 91 for the purposes of administering and implementing this part.

     §323D-C  Access to long-term care facilities and aging in place facilities.  (a)  A long-term care facility or aging in place facility shall permit immediate access to the long-term facility or aging in place facility, and to the residents of the long-term care facility or aging in place facility, to the long-term care ombudsman or ombudsman's designee at any time deemed necessary and reasonable by the long-term care ombudsman for the performance of the duties and functions under this part.

     (b)  Access to the residents of the long-term care facility or aging in place facility shall include the provision of privacy.

     (c)  A long-term care facility or aging in place facility shall permit access by the long-term care ombudsman or ombudsman's designee to all resident records or portions thereof necessary for the long-term care ombudsman to evaluate the merits of any complaint; provided that resident records shall be divulged only with the written consent of the resident or the resident's legal representative.

     (d)  The long-term care ombudsman shall report violations of this section to the department of health.

     (e)  The department of health shall adopt rules, including the establishment of administrative fines or other penalties, pursuant to chapter 91 for the violation of this section.

     §323D-D  Retaliatory acts by facilities or facility employees prohibited.  (a)  No resident of a long-term care facility or aging in place facility seeking advocacy assistance as provided for in section 323D-B or making a complaint concerning a long-term care facility or aging in place facility or any of its employees shall be subject to any retaliatory act by the long-term care facility or aging in place facility or any of its employees for seeking advocacy assistance or making a complaint.

     (b)  No person seeking advocacy assistance as provided for in section 323D-B or making a complaint concerning a long-term care facility or aging in place facility or any of its employees on behalf of a resident of a long-term care facility or aging in place facility shall be subject to any retaliatory act by the long-term care facility or aging in place facility or any of its employees for seeking advocacy assistance or making a complaint.

     (c)  For the purposes of this section, the term "retaliatory act" includes actual or threatened physical injury, psychological abuse or neglect, sexual abuse, negligent treatment, maltreatment, or any form of discrimination as reprisal for seeking advocacy assistance or making a complaint.

     (d)  A violation of this section shall be reported by the long-term care ombudsman to the appropriate police department or prosecuting attorney.

     (e)  Any long-term care facility or long-term care facility employee or aging in place facility or aging in place facility employee who violates this section shall be guilty of a misdemeanor.  Each separate retaliatory act and each day during which any retaliatory act continues shall constitute a separate offense.

     §323D-E  Wilful interference; prohibited.  Any individual, including any long-term care facility or long-term care facility employee or aging in place facility or aging in place facility employee, who wilfully interferes with or impedes the long-term care ombudsman or ombudsman's designee in the performance of the long-term care ombudsman's or ombudsman's designee's duties pursuant to this part shall be guilty of a misdemeanor.  Each separate act of wilful interference and each day during which any wilful interference continues shall constitute a separate offense.

     §323D-F  Posting and distribution of information.  (a)  The long-term care ombudsman shall provide each long-term care facility and aging in place facility with brochures and a poster with information regarding the office of the long-term care ombudsman, including the name, address, and telephone number of the office of the long-term care ombudsman and a brief description of the services provided by the office of the long-term care ombudsman.

     (b)  A long-term care facility or an aging in place facility shall provide each resident of the long-term facility or aging in place facility, respectively, with a copy of the brochure and shall post the poster in a conspicuous location that is accessible to all residents of the long-term care facility or aging in place facility."

     SECTION 3.  Section 457B-6, Hawaii Revised Statutes, is amended to read as follows:

     "§457B-6  Powers and duties of director.  In addition to any other powers and duties authorized by law, the director shall:

     (1)  Develop, impose, and enforce standards which shall be met by individuals in order to receive a license as a nursing home administrator, which standards shall be designed to insure that nursing home administrators shall be individuals who by training or experience in the field of institutional administration, are qualified to serve as nursing home administrators;

     (2)  Develop and apply appropriate techniques, including examinations and investigations, for determining whether an individual meets the standards of this chapter or the rules adopted pursuant thereto;

     (3)  Issue licenses to individuals determined, after the application of appropriate techniques, to meet the required standards, and revoke or suspend licenses in any case where the individual holding a license is determined substantially to have failed to conform to the required standards of this chapter or the rules adopted pursuant thereto;

     (4)  Establish and carry out procedures designed to insure that individuals licensed as nursing home administrators shall, during any period that they serve as such, comply with the required standards.  The director shall also initiate and maintain cooperative arrangements with the long-term care ombudsman, state health planning and development agency, department of human services, and the department of health for the sharing of information on the performance of administrators;

     (5)  Receive, investigate, and take appropriate action with respect to any charge or complaint filed with the department to the effect that any individual licensed as a nursing home administrator has failed to comply with the requirements of this chapter or the rules adopted pursuant thereto;

     (6)  Adopt in accordance with chapter 91 rules as may be necessary for the purposes of this chapter; and

     (7)  Maintain a record of all proceedings."

     SECTION 4.  Part III of chapter 349, Hawaii Revised Statutes, is repealed.

     SECTION 5.  All rights, powers, functions, and duties of the office of the long-term care ombudsman of the executive office on aging are transferred to the state health planning and development agency.

     All employees who occupy civil service positions and whose functions are transferred to the state health planning and development agency by this Act shall retain their civil service status, whether permanent or temporary.  Employees shall be transferred without loss of salary, seniority (except as prescribed by applicable collective bargaining agreements), retention points, prior service credit, any vacation and sick leave credits previously earned, and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

     Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act may retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act.  An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws.  The administrator may prescribe the duties and qualifications of these employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes.

     SECTION 6.  All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the executive office on aging relating to the functions transferred to the state health planning and development agency shall be transferred with the functions to which they relate.

     SECTION 7.  All rules, policies, procedures, guidelines, and other material adopted or developed by the executive office on aging to implement provisions of the Hawaii Revised Statutes and that are reenacted or made applicable to the state health planning and development agency by this Act shall remain in full force and effect until amended or repealed by the administrator of the state health planning and development agency pursuant to chapter 91, Hawaii Revised Statutes.  In the interim, every reference to the executive office on aging or the director of the executive office on aging in those rules, policies, procedures, guidelines, and other material is amended to refer to the state health planning and development agency or the administrator of the state health planning and development agency, as appropriate.

     SECTION 8.  All deeds, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the executive office on aging pursuant to the provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the state health planning and development agency in the department of health by this Act, shall remain in full force and effect.  From July 1, 2014, every reference to the department of human services or the director of human services therein shall be construed as a reference to the department of health or the director of health, as appropriate.

     SECTION 9.  If any part of this Act is found to be in conflict with federal requirements that are a prescribed condition for the allocation of federal funds to the State, the conflicting part of this Act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this Act in its application to the agencies concerned.  The rules in effect as a result of this Act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the State.

     SECTION 10.  The executive office on aging and the state health planning and development agency shall collaborate to implement the transfers and transitions required under this Act with as little disruption as is possible to the ongoing duties, responsibilities, and public services each respective office or agency currently provides.

     SECTION 11.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters designating the new sections in this Act.

     SECTION 12.  New statutory material is underscored.

SECTION 13.  This Act shall take effect upon its approval; provided that sections 2 through 9 shall take effect on July 1, 2019.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Aging; Long-Term Care Ombudsman; Executive Office on Aging; State Health Planning and Development Agency; Transfer

 

Description:

Broadens the scope of the Long-Term Care Ombudsman.  Transfers the Long-Term Care Ombudsman from the Executive Office on Aging to the State Health Planning and Development Agency.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.