Report Title:

Adult Residential Care Homes

Description:

Provides for waivers of rules by DOH. Requires hearing at least 24 hours before ordered closure of an adult residential care home. Prohibits reduction in licensed capacity as form of penalty. Clarifies announced annual inspections. Provides for expanded facility and expanded resident licensing.

HOUSE OF REPRESENTATIVES

H.B. NO.

2316

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to adult residential care homes.

 

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

SECTION 1. Chapter 321, Hawaii Revised Statutes, is amended by adding five new sections to be appropriately designated and to read as follows:

"321-A Adult residential care homes; waiver of rule. The director may waive a specific rule with regard to adult residential care homes or expanded adult residential care homes. All requests for waivers shall be submitted to the director in writing. The director shall deny requests for waivers if the granting of a waiver creates a hazard to health or safety of the residents. A waiver may be renewed at the discretion of the director. Waivers shall not be transferred from one licensee to another or from one facility to another.

321-B Adult residential care homes; expanded facility and expanded resident licensing. (a) The department shall issue an expanded facility license to an expanded facility residential care home where:

(1) The expanded facility residential care home is suitable for accommodating residents who are not capable of self-preservation;

(2) All existing waivers for the expanded facility residential care home have been reviewed by the department prior to determining the eligibility of an applicant; and

(3) Policies and procedures have been developed by the licensee to meet the provisions of this section.

At no time shall the total bed capacity of the expanded facility residential care home exceed the licensed capacity under the original license.

(b) The department shall issue an expanded resident license to an expanded resident residential care home where:

(1) The applicant seeks a license to care for a resident at the nursing facility level of care whose best interests call for that resident to continue residing in the applicant's facility;

(2) The expanded resident license identifies the resident whose best interests call for that resident to continue residing in that facility;

(3) The department may condition the issuance of the expanded resident license on the applicant's obtaining additional training, staffing, or both, to meet the health and safety needs of the resident for whom the expanded resident license is issued; and

(4) The department may require waivers of liability from the resident and the resident's family as a condition for the issuance of the expanded resident license;

Except as provided in this subsection, sections 321-C and 321-D shall not apply to the expanded resident residential care home. The expanded resident license shall terminate immediately upon the discharge or transfer of the resident in whose name the expanded resident license was issued.

(c) As used in this section, unless the context requires otherwise:

"Expanded facility residential care home" means a residential care home whose licensed status is based on compliance with all of the provisions of this chapter relating to adult residential care homes.

"Expanded resident residential care home" means a residential care home whose licensed status is based on an individualized, case-by-case determination for a specified nursing facility level resident that implements the social model of health care, aging in place, and resident choice.

321-C Expanded facility residential care home; procedures. (a) The department shall exercise its discretion for a resident already residing in a Type I or Type II expanded facility residential care home to allow the resident to remain as an additional nursing facility level resident based upon the best interests of the resident. The best interests of the resident shall be determined by the department after consultation with the resident, the resident's family, primary physician, case manager, primary caregiver and home operator.

(b) The resident, the resident's family, the resident's physician, or the care home may apply for the increased licensed capacity for nursing facility level residents by submitting a written request to the department which shall include the following:

(1) A written request signed by the resident or the resident's family stating the reason or reasons for the request;

(2) A care plan prepared by a registered nurse, case manager, physician, or advanced practice registered nurse that includes, where appropriate, conditions for additional training, staffing, or both, for meeting the health and safety needs of the nursing facility level resident;

(3) A written statement by the resident's physician stating that continued residence at the care home is in the best interests of the resident and the basis for that opinion; and

(4) A statement by the licensee that the licensee has agreed to care for the resident, and where applicable, to comply with the conditions for additional training, staffing, or both, identified in the care plan for the resident.

(c) Within ten calendar days after receipt of the items in subsection (b), the department, in writing, shall either grant or deny the request. In the event that the request is denied, the department shall state the reason or reasons for denial.

(d) The resident, the resident's family, the resident's physician, or the licensee may appeal the department's decision denying the request. The department shall process such an appeal expeditiously. The resident shall be provisionally entitled to remain at the care home until there is a final decision on the appeal.

321-D Expanded resident residential care home; procedures. (a) The department shall exercise its discretion in granting an expanded resident license based upon the best interests of the nursing facility level resident identified. The best interests of the resident shall be determined by the department after consultation with the resident, the resident's family, primary physician, case manager, primary caregiver, and home operator.

(b) The resident, the resident's family, the resident's physician, or the care home may apply for the expanded resident license by submitting a written request to the department that shall include the following:

(1) A written request signed by the resident or the resident's family stating the reason or reasons for the request;

(2) A care plan prepared by a registered nurse or case manager that includes, where appropriate, conditions for additional training, staffing, or both, for meeting the health and safety needs of the nursing facility level resident;

(3) A written statement by the resident's physician stating that continued residence at the care home is in the best interests of the resident and the basis for that opinion; and

(4) A statement by the licensee that the licensee has agreed to care for the resident, and where applicable, to comply with the conditions for additional training, staffing, or both, identified in the care plan for the resident.

(c) Within ten calendar days after receipt of the items in subsection (b), the department shall either grant or deny the request in writing. In the event that the request is denied, the department shall state the reason or reasons for denial.

(d) The resident, the resident's family, the resident's physician, or the licensee may appeal the department's decision denying the request. The department shall process such an appeal expeditiously. The resident shall be provisionally entitled to remain at the care home until there is a final decision on the appeal.

321-E Adult residential care homes; emergency procedures. (a) If the department determines that the licensee, primary caregiver, staff, or other household member has subjected a resident to abuse, gross or repeated neglect, or exploitation, and a resident or residents in the facility are in imminent danger of harm, the department shall order the immediate discontinuance of the operation of the adult residential care home or the expanded adult residential care home and revoke the license issued pursuant to this chapter. The order shall be effective immediately and shall designate the date for the operation's discontinuance. The department shall provide written notice of the order to the licensee by certified mail prior to the date of discontinuance of operation.

(b) The department shall provide the licensee an opportunity for a hearing no later than twenty-four hours before the date designated for discontinuance of the operations of the adult residential care home or the expanded adult residential care home. The licensee shall have the right to counsel at that hearing.

(c) Any hearing conducted under this section shall be conducted as a contested case hearing under chapter 91. If after a hearing held pursuant to this section, the director finds that the violation or violations have occurred, the director shall affirm or modify the order of immediate discontinuance of operation and revocation previously issued or issue an appropriate order or orders as may be appropriate. If, after the hearing on an order of discontinuance of operation and revocation, the director finds that no violation has occurred or is occurring, the director shall rescind the order of discontinuance of operation and revocation."

SECTION 2. Section 321-15.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) All adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct unannounced visits, other than the inspection for relicensing, to every licensed adult residential care home and expanded adult residential care home on an annual basis and at such intervals as determined by the department to ensure the health, safety, and welfare of each resident. Unannounced visits may be conducted during or outside regular business hours. All inspections relating to follow-up visits, visits to confirm correction of deficiencies, or visits to investigate complaints or suspicion of abuse or neglect shall be conducted unannounced during or outside regular business hours. Annual inspections for relicensing may be conducted during regular business hours or at intervals determined by the department. Annual inspections for relicensing shall be conducted with notice, unless otherwise determined by the department. Following the annual relicensing inspection, a list of deficiencies, if any, shall be given to the adult residential care home or expanded adult residential care home. The licensee shall provide the department with a written a plan of correction for the deficiencies cited within ten working days. An acceptable plan for correcting deficiencies shall include the time frame for correction and the preventive measures proposed to be instituted to ensure compliance."

SECTION 3. Section 321-15.7, Hawaii Revised Statutes, is amended to read as follows:

"321-15.7 Penalty. (a) Any person who intentionally operates an adult residential care home or hospice home without a license shall be guilty of a misdemeanor.

(b) If the department determines that any person has violated section 321-15.6, 321-15.61, 321-15.62, 321-A, 321-B, 321-C, 321-D, or 321-E, or any term or condition of a license issued pursuant to this chapter, the department may:

(1) Issue and order assessing an administrative penalty for any past of current violation; or

(2) Require compliance immediately by a specified date.

In no case shall the department order a reduction in licensed capacity unless the violation relates to the inability of the licensee to care for the number of residents previously authorized in the licensed capacity of the adult residential care home or the expanded adult residential care home."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

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