REPORT TITLE:
ARCH; Ad Hoc Complaint Committee


DESCRIPTION:
Requires DHS to convene ad hoc complaint committee to hear
presentations from Type I ARCH operators to determine sufficiency
of presentations to sustain a complaint of misconduct, including
abuse or neglect, against a resident.  In complaints not
involving abuse or neglect, prohibits DHS from withdrawing its
client from the care home during review.  Effective upon
approval.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.646        
TWENTIETH LEGISLATURE, 1999                                
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:

 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
 

 
Page 2                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 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 provide a mechanism whereby operators
 
12 of Type I adult residential care homes in Hawaii are guaranteed
 
13 an opportunity to defend themselves in cases of alleged
 
14 misconduct against residents, including abuse and neglect.  The
 
15 purpose of this Act is to provide equity for the accused by
 
16 affording the accused Type I adult residential care home operator
 
17 a chance to make his or her case.
 
18      This Act is intended to improve the existing administrative
 
19 and judicial process under part X, chapter 346, Hawaii Revised
 
20 Statutes, while not unduly delaying it, in cases involving
 
21 complaints of misconduct against residents by establishing a
 
22 first-step procedure in which the accused operator is given the
 
23 chance to present the operator's version of what occurred to an
 

 
Page 3                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 1 ad hoc complaint committee.  This process will also prove cost-
 
 2 effective for operators.  The ad hoc committee review process is
 
 3 not intended to supplant existing administrative or judicial
 
 4 procedures under part X, chapter 346, Hawaii Revised Statutes,
 
 5 but to equitably supplement it.  Upon receiving a finding from
 
 6 the ad hoc committee, it remains the role of the department of
 
 7 human services to determine if there is any merit to a complaint
 
 8 and thus a basis for the department to proceed with further
 
 9 investigation or review.
 
10      SECTION 2.  (a)  This Act shall not apply to cases involving
 
11 expanded adult residential care homes.  After receiving a
 
12 complaint against a Type I adult residential care home operator
 
13 accused of misconduct against a resident, including abuse or
 
14 neglect, the department of human services, as part of its regular
 
15 review of such complaints under part X, chapter 346, Hawaii
 
16 Revised Statutes, shall convene an ad hoc complaint committee, as
 
17 a first step, to hear the operator's version of events presented
 
18 by the accused care home operator to determine if there is
 
19 adequate merit to the complaint to proceed further with the
 
20 review.  The department of human services shall convene the ad
 
21 hoc complaint committee only in cases where a complaint is lodged
 
22 against a Type I adult residential care home operator.  The
 
23 department's ad hoc complaint committee shall hear presentations
 

 
Page 4                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 1 only in complaints where the alleged victim of misconduct is a
 
 2 client for whom reimbursement for care services is made by the
 
 3 department of human services.  The department of human services
 
 4 shall have the sole power to dispose of a complaint.  The work of
 
 5 the ad hoc complaint committee shall operate only as a part of
 
 6 the existing review process of the department of human services
 
 7 under part X, chapter 346, Hawaii Revised Statutes, and the ad
 
 8 hoc complaint committee shall not have the power to dispose of a
 
 9 complaint.  The duty of the ad hoc complaint committee shall be
 
10 to hear presentations from the accused operator and find whether
 
11 the complaint is sufficiently meritorious to warrant a
 
12 continuation of the review process under part X, chapter 346,
 
13 Hawaii Revised Statutes, and report that finding to the
 
14 department of human services.  The director of human services
 
15 shall then proceed to take appropriate and necessary action under
 
16 part X, chapter 346, Hawaii Revised Statutes.
 
17      (b)  In convening the ad hoc complaint committee, the
 
18 department shall enlist the assistance of one representative, or
 
19 a designee, from each of the following:
 
20      (1)  Department of health;
 
21      (2)  Department of human services;
 
22      (3)  The office of ombudsman;
 
23      (4)  United Group of Home Operators; and
 

 
Page 5                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 1      (5)  Alliance of Residential Care Administrators.
 
 2 Five panel members shall constitute a quorum and decisions shall
 
 3 be made by majority vote.
 
 4      (c)  Whenever the department of human services receives a
 
 5 complaint against a Type I adult residential care home operator
 
 6 that alleges misconduct against a resident residing in the care
 
 7 home, the department shall first convene the ad hoc complaint
 
 8 committee.  The ad hoc complaint committee shall hear
 
 9 presentations from the accused operator and shall make a finding
 
10 expeditiously as required under subsection (a).
 
11      (1)  In cases where a complaint of misconduct involves abuse
 
12           or neglect of a client, the department of human
 
13           services shall immediately withdraw the client alleged
 
14           to be the victim of abuse or neglect and for whom the
 
15           department reimburses the care home operator for care
 
16           provided, and shall immediately convene the ad hoc
 
17           complaint committee to hear presentations;
 
18      (2)  In cases where a complaint of misconduct does not
 
19           involve abuse or neglect of a client, the department
 
20           shall refrain from withdrawing the client from the care
 
21           home but shall immediately convene the ad hoc complaint
 
22           committee to hear presentations.
 
23 If the complaint committee finds that the complaint is
 

 
Page 6                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 1 insufficiently meritorious to warrant further proceedings, the
 
 2 department shall return the client to the care home in cases
 
 3 involving complaints of abuse or neglect under paragraph (1).  On
 
 4 the other hand, if the complaint committee finds that the
 
 5 complaint is sufficiently meritorious, the department shall not
 
 6 return the client to the care home in cases under paragraph (1)
 
 7 and shall immediately withdraw the client from the care home in
 
 8 cases under paragraph (2) until the complaint is fully resolved
 
 9 by the department.  In all cases, the finding of the ad hoc
 
10 complaint committee and its report to the department shall be
 
11 considered the conclusion of the first step in the appropriate
 
12 existing administrative and judicial procedures under part X,
 
13 chapter 346, Hawaii Revised Statutes.  Upon receiving the report,
 
14 the department shall implement any remaining procedures, as
 
15 necessary, to resolve the complaint expeditiously.
 
16      (d)  Nothing in this section governing the ad hoc complaint
 
17 committee review process shall prevent the department of human
 
18 services, the department of health, the alleged victim of
 
19 misconduct, whether or not involving charges of abuse or neglect,
 
20 or any other agency or affected individual, as complainant, from
 
21 seeking other remedies by instituting any judicial action.
 

 
 
 
 
 
Page 7                                                     
                                     H.B. NO.646        
                                                        
                                                        

 
 1      SECTION 3.  This Act shall take effect upon its approval.
 
 2 
 
 3                           INTRODUCED BY:  _______________________