Updated 10:45 a.m., 4/28/2015
State health officials have asked legislators to put an expiration date on a proposed law that could displace an unknown number of Medicaid clients who want to live at community care foster family homes.
But so far, conference committee negotiators seem disinclined to do that, and the bill’s leading proponent says the need to allow private-pay couples to live together in such homes should trump the state’s concern about ensuring they’re available to poorer residents.
The latest version of House Bill 600 would let the Department of Health make an exception to the statute that regulates how many private-pay clients are allowed in community care foster family homes, or CCFFHs as they’re called within the industry.
These homes, which provide nursing-facility level of care in neighborhood settings, can serve a maximum of three clients. Currently, two can be on Medicaid and one can pay with his or her own money.
The bill would give the DOH’s Office of Health Care Assurance, headed by Keith Ridley, the power to flip this by letting homes have two private-pay clients and one Medicaid recipient so long as those paying with their own money are married or in a civil union.
Ridley told Civil Beat that he remains concerned about the legislation’s impact because he doesn’t know how many couples will want to take advantage of the change in the law and what its effect will be on the availability of beds for Medicaid recipients. But there’s some assurance in the fact that the law would leave it up to his discretion.
“At this time, the impact is not foreseeable and a period to determine different factual scenarios is required.” — DHS Director Rachael Wong
There are more than 12,000 long-term care residents statewide in roughly 1,600 homes that provide different levels of care, a few hundred of which are CCFFHs. The numbers are growing as Hawaii’s population rapidly ages.
Ridley has suggested more than once this year that if community care foster family homes really want to help private-pay married couples, they should become licensed as an expanded adult residential care home which could accommodate them.
Department of Human Services Director Rachael Wong sent a memo Thursday to a joint panel of House and Senate lawmakers who are negotiating a final draft of the bill.
She said the only way the DHS and the DOH can support the legislation is if the conference committee adds a sunset date of June 30, 2018, so the two departments can have time to assess the impact of the proposed changes on the ability to maintain available beds for Medicaid recipients.
“At this time, the impact is not foreseeable and a period to determine different factual scenarios is required as well as to assess how the public may respond to the proposed legislation,” Wong wrote.
Ideally, she said, DHS would prefer to establish a “floor” or an administrative process to determine a “moratorium of the number of married couples allowed” so that beds for Medicaid recipients would always be available in each county.
DOH, which is responsible for licensing CCFFHs, does not have a mechanism to track bed vacancies and does not have the resources needed to collect and maintain this information, according to the memo.
“Consequently, neither DHS nor DOH can currently suggest a minimum number of beds that must remain available per county for Medicaid recipients, as the Legislature intended by enacting the existing statute,” Wong wrote.
The lead negotiators on the conference committee, Sen. Suzanne Chun Oakland and Rep. Dee Morikawa, were not inclined Thursday to put an expiration date on the law.
Chun Oakland said she understands the concern about serving Medicaid clients and encouraged DHS and DOH to work together on finding a way to expand the number of beds to meet the needs of this growing demographic.
If amendments to the law are needed, she said, the departments can come back to the Legislature to make those recommendations.
Update: The conference committee reconvened Tuesday morning to consider a final draft of the bill. The committee decided to defer action until Wednesday morning.
The sentiment of the chairs was to include a two-year provision for the departments to develop rules to allow two private-pay couples in a CCFFH.
Chun Oakland said she and Morikawa are concerned about diminishing the number of beds for Medicaid recipients but also concerned about “keeping couples together.”
Friday is the deadline for the committee to pass it for the full Legislature to approve it before the session ends May 7.
House Bill 600, introduced by Vice Speaker John Mizuno and Reps. Morikawa and Tom Brower, has changed significantly since it was introduced.
It initially would have allowed two private-pay clients in each home as long as they were related by blood, marriage or even friendship.
Care home operators urged lawmakers to pass the bill when it was first heard in February, explaining how the change would “help us not to struggle to make ends meet,” as Elma Tierra put it. She’s president of the Adult Foster Home of the Pacific, one of many care homes in Waipahu.
Others testified that the needs of Medicaid recipients have been met and private-pay clients deserve more options to age in residential settings.
Heeding the advice of state health officials who were concerned about CCFFHs straying from their intended purpose of serving those most in need, lawmakers amended the bill to limit the exception to couples in a marriage or civil union.
That’s a compromise Mizuno can live with. He has championed the legislation with a series of press releases and news conferences.
“HB600 is the Cinderella bill of the 2015 legislative session because it involves a love story of a married couple of 67 years, separated by a state regulation which does not allow them to live in the same community care home,” he said in an April 22 release.
Mizuno has worked with Jonathan Hanks, who runs an adult foster home in Kaneohe with his wife Arlene. One of their clients, Noboru Kawamoto, has become the poster child for the legislation.
“Allowing couples who have spent their whole lives with each other, to live out their final years together has to take precedent over the state’s need to provide for Medicaid clients.” — House Vice Speaker John Mizuno
Kawamoto is a veteran who served in the 442nd Regimental Combat Team in World War II. He’s also been married to his wife Elaine for the past 67 years. Like other aging couples, they want to live together in a home where they can receive the nursing-facility level of services they need without being in an institutional setting.
But since the Kawamotos would both be private-pay clients, Hanks can only have Noboru at his home, which has reduced the couple’s time together to weekend visits. Changing the law would let the two live together.
“I understand the need to provide long-term housing for Medicaid patients,” Mizuno said in a Feb. 13 release. “However, allowing couples who have spent their whole lives with each other, to live out their final years together has to take precedent over the state’s need to provide for Medicaid clients. It’s just the right thing to do. I believe marriage is a fundamental right and unless the State can provide a compelling reason to keep this couple apart, this bill needs to become law.”
Hanks has taken Kawamoto in his wheelchair to each hearing, testifying on the bill when the opportunity allowed. They attended Thursday’s conference committee meeting too, along with other care home operators and their clients.
John McDermott, the state long-term care ombudsman, has repeatedly cautioned against relaxing regulations of care homes. The death of 88-year-old Nona Mosman and subsequent prosecution of her caregiver has only reinforced his position.
Mosman died in May 2013 while living in a Waipahu foster care home ran by Jennifer Polintan. In January, Polintan was sentenced to a year in prison for manslaughter after it was revealed that she had another full-time job and had left the care up to her unqualified relatives.
Several bills to benefit the care home industry were introduced at the beginning of this session but House Bill 600 is one of the few that’s still alive. The cost to the state was often a factor in legislation that died.
House Bill 1116 would have changed how old the primary and substitute caregivers must be and how many hours of continuing education they have to complete. Health officials were worried about an effort to lower the minimum age from 21, but the bill never got a hearing.
House Bill 1195 would have let adult residential care homes have three clients at the nursing-facility level of care instead of two.
The care home industry fought for this change in 2010 and succeeded in getting the bill passed over the concerns of health officials. The law was supposed to sunset in 2013, but the Department of Health has allowed the practice to continue.
The bill cleared the House but died in the Senate last month after not being heard by the Ways and Means Committee, chaired by Sen. Jill Tokuda.
“Mr. Ridley from the Department of Health feels it is not necessary to put this bill into law, but we, as care home operators, would feel more at ease knowing that we are upholding the law and not following the word of an administrator whose employment may change at any time,” said Waynette Gaylord, a care home operator and vice president of the Alliance of Residential Care Administrators.
The House Human Services Committee, chaired by Morikawa, killed House Bill 1115 in February. The legislation would have increased the state payments to ARCHs, CCFFHs and other types of facilities.
Currently, those payments are based on the federal poverty level established in 2006. The bill would have brought that level up to date and tied it to the consumer price index so it would automatically be adjusted each year.
The federal poverty level in 2014 was 19 percent higher than in 2006, a point the Department of Human Services highlighted in its testimony on the bill. But that would have cost the state hundreds of thousands of dollars extra each year, if not more.
However, Senate Bill 912, introduced by Chun Oakland and Sen. Roz Baker, is still alive. The bill, in its current form, would provide an annual inflationary adjustment to long-term care facility prospective reimbursement rates provided to Medicaid recipients.
Update: A conference committee briefly discussed the bill Tuesday morning before deferring it until Wednesday.
An agreement on the final language may be difficult though since the Senate, thanks to Chun Oakland, just wants to study it and the House, thanks to Morikawa, wants to actually implement the rate adjustment.
However, Chun Oakland said the chairs have come to an agreement on a final version and are now just waiting approval from the House and Senate money committees.
If it passes, it could go a long way to help cover the gap between costs and reimbursements. The legislation notes that 70 percent of patients in long-term care facilities are covered by Medicaid.
Lawmakers also killed legislation that would have given more resources to people on Medicaid, including House Bill 1161.
The bill got legs in the House with help from Morikawa and Rep. Della Au Belatti, who chair the Human Services and Health committees, respectively.
The legislation made its way through the Senate Health and Housing and Human Services committees, chaired by Sens. Josh Green and Chun Oakland, respectively. They put $13.6 million worth of appropriations in the bill for five different initiatives, including $4.8 million to restore adult dental benefits to Medicaid enrollees.
But the Senate money committee didn’t hear the bill, effectively killing it this session.