Hawaii-2012-SB936-Introduced

SECTION 1. The legislature finds that in 1980, older adults comprised twelve per cent of the State's total population. In 2000, the population nearly doubled, with over two hundred and seven thousand older adults comprising seventeen per cent of Hawaii's total population. This growth trend is expected to continue. According to a May 2006 report prepared by the executive office on aging, Profile of Hawaii's Older Adults and Their Caregivers, by the year 2020, persons of age sixty and older will constitute nearly one-third, or thirty per cent, of Hawaii's adult population. Moreover, the number of persons who are eighty-five years of age and older is projected to continue to increase dramatically, from 5,561 in 1980 to 33,800 in 2020.

The legislature further finds that the array of publicly-funded programs and services that serve the older population in the areas of health care, disability services, insurance, long-term care, caregiver support, medicaid, medicare, and institutional and community-based adult care, for example, are scattered among state departments. These programs and services help to meet the multi-faceted needs of older adults and are provided by various county, state, federal, private, and not-for-profit entities but can be challenging for care recipients, caregivers, and families to navigate. As a central agency, the executive office on aging currently coordinates some of the programs and services available to Hawaii's older population; however, the scope and magnitude of overlapping issues facing the elderly may necessitate department-level attention. A departmental agency could better focus resources and personnel by directly addressing with top-level policy makers the multi-faceted needs of Hawaii's older population.

The purpose of this Act is to establish a department of aging and consolidate publicly-funded programs and services that would appropriately fall within the jurisdiction of a new department of aging.

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

§ -1 Definitions. The following definitions, whenever used in this chapter, shall have the following respective meanings, unless a different meaning clearly appears in the context:

"Board" means the policy advisory board for elder affairs.

"Department" means the department of aging.

"Director" means the director of aging.

"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 by the State serving elders.

§ -2 General powers and duties of the department. (a) The department shall have the following principal functions, duties, and powers:

(1) Serve as the principal department in state government responsible for the performance, development, and implementation of programs, policies, and activities on behalf of elders;

(2) Oversee, supervise, and direct the planning, evaluation, and coordination of elder programs and development of a statewide service delivery network;

(3) Assess the policies and practices of other agencies impacting elders and conduct advocacy efforts for elders;

(4) Advise the governor on new legislation, programs, and policy initiatives, and requirements for their implementation;

(5) Serve as a member of advisory boards and regulatory panels of state agencies in areas such as income maintenance, public employment, retirement systems, certification of health care facilities and programs, social service and medical assistance, and housing and employment;

(6) Administer funds allocated for the department; and apply for, receive, and disburse grants and donations from all sources for elder programs and services;

(7) Establish a clearinghouse for complaints of persons regarding services to elders or operations of state and county agencies affecting elders, investigate the complaints, and refer the complaints and the director's findings to the appropriate agency for corrective action;

(8) Adopt, amend, and repeal rules pursuant to chapter 91 for the purposes of this chapter;

(9) Employ and retain staff as may be necessary for the purposes of this chapter, in conformity with chapter 76; and

(10) Contract for or grant services as may be necessary for the purposes of this chapter, including master contracts with other state agencies receiving federal and state funds for programs and services for the aging, and purchase of service agreements with appropriate agencies.

§ -3 Administrative and program support for the department of aging. (a) Administrative and program support for the department shall be accomplished through two principal organizational divisions: the planning and administrative services division and the community assistance and program management division.

(b) The planning and administrative services division shall be responsible for:

(1) Preparation and submission of programs and budgets;

(2) Preparation of an annual evaluation report on elder programs to be submitted to the governor and legislature;

(3) Preparation of studies and analyses;

(4) Maintenance of personnel records;

(5) Management of contracts and agreements entered into by the department of aging with public and private vendors, consultants, and suppliers;

(6) Monitoring of the purchase of service agreements with public and private agencies and rendering of technical assistance to elder program service providers; and

(7) Establishment and maintenance of reimbursement systems for services provided by agreement with federal, state, and county agencies, as well as private groups.

(1) Legislative research and development as well as serving as a liaison on state and federal legislative matters;

(2) Conducting of public affairs programs on elder affairs programs, projects, and needs;

(3) Development and implementation of educational, recreational, and cultural programs for elders;

(4) Provision of technical assistance and serving as a liaison with community groups, organizations, and independent programs of benefit to elders;

(5) Development and implementation of active programs of consumer protection and pre-retirement counseling;

(6) Establishment of a statewide information and referral system, and an annual inventory of elder programs and service agencies;

(7) Technical assistance and serving as a liaison for establishing elder-controlled local service delivery systems providing comprehensive services and employment opportunities for elders throughout the State; and

(8) Development and management of federally-funded programs and special projects under the federal Older Americans Act of 1965, as amended, and other federal sources.

§ -4 Policy advisory board for elder affairs. (a) There shall be a policy advisory board for elder affairs, appointed by the governor under section 26-34. The board shall advise the director in the following areas:

(1) The identification of issues and alternative approaches to solutions;

(2) The development of position statements and papers;

(3) Advocacy and legislative actions; and

(4) Program development and operations.

(b) The board shall consist of not less than twenty-one nor more than twenty-nine members, a majority of whom are over sixty years of age, who shall be selected on the basis of their interests and knowledge in and their ability to make contributions to the solution of problems relating to aging, and shall include at least one member from the county of Hawaii, one member from the county of Maui, one member from the county of Kauai, and one member from the city and county of Honolulu. There shall be nine members who shall serve as ex officio members and shall be chosen from among the heads of the following state agencies which provide services or programs affecting elders: the departments of health, human services, education, labor and industrial relations, and transportation; the University of Hawaii; the state employees' retirement system; the office of consumer protection; and, by invitation, the Hawaii representative of the United States Department of Health and Human Services. Of the non ex officio members, one-third of the members shall be appointed for an initial term of four years, one-third for an initial term of three years, and one-third for an initial term of two years; and thereafter the terms of office of each member shall be four years.

(c) The members shall serve without compensation, but shall be paid for necessary travel expenses in attending meetings and carrying out the responsibilities of the board. The chairperson shall be elected annually from the nongovernmental members of the board. There shall be not less than twelve meetings of the board each year.

§ -5 State master plan for elders. The department shall be responsible for the continued development, implementation, and continuous updating of a comprehensive master plan for elders which shall include the following:

(1) Compilation of basic demographic data on elders in the State;

(2) Identification of the physical, sociological, psychological, and economic needs of elders in the State;

(3) Establishment of immediate and long-range goals pursuant to programs and services for elders in the State;

(4) Establishment of priorities for program implementation and of alternatives for program implementation; and

(5) Organization of administrative and program structure, including the use of facilities and personnel.

The state master plan for elders shall be developed in accordance with the requirements of the executive budget act. § -6 State policy for senior centers. The department shall be responsible for establishing state policy for senior centers, which shall include the following:

(1) Establishment of comprehensive long range and immediate goals and objectives;

(2) Establishment of state standards for the operation and maintenance of senior centers;

(3) Establishment of priorities for program implementation and of alternatives for program implementation;

(4) Delineation of the separate and mutual roles, responsibilities, and authorities of the State and of the several counties relative to the development and administration of senior centers and senior center programs; and

(5) Establishment of a mechanism to provide for the effective monitoring of senior centers and senior center programs.

§ -7 Coordination and development of caregiver support services. The department shall coordinate a statewide system of caregiver support services by, among other things:

(1) Integrating family caregiver support with the aging and disability resource center demonstration project;

(2) Analyzing the long-term care needs of older adults and the capacity of family and informal caregivers to help them remain safely at home;

(3) Advocating, mobilizing, and coordinating employer and community resources to enable and augment family caregiver support;

(4) Establishing and maintaining protocols and standards for federal and state caregiver services administered by state, county, or other local agencies on aging;

(5) Establishing and supervising the alignment of long‑term care advocacy assistance staff caregiver support objectives with the planning, resource development, grants management, data management, and evaluation functions of the department; and

(6) Coordinating statewide support for grandparents and other aging relative caregivers of children eighteen and under.

§ -8 Office of the long-term care ombudsman. (a) There is established the office of the long-term care ombudsman in the department to protect the health, safety, welfare, and rights of residents of long-term care 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 of 1965, as amended.

(1) Represent the interests of residents of long-term care 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) Identify, investigate, and resolve complaints, including complaints against providers of long-term care services and their representatives, made by or on behalf of residents of long-term care facilities relating to actions, inactions, or decisions that may adversely affect the health, safety, welfare, or rights of residents of long-term care 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, including the adequacy of long-term care 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;

(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 to residents of long-term care 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 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

(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;

(11) Provide residents of long-term care 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

(12) Seek administrative, legal, or other remedies to carry out the relevant sections of this chapter; 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 the relevant sections of this chapter.

(f) For the purposes of this section:

"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;

(3) Employment by, or participation in the management of, a long-term care facility; 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.

§ -9 Access to long-term care facilities. (a) A long‑term care facility shall permit immediate access to the long-term facility and to the residents of the long-term care facility to the long-term care ombudsman or designee at any time deemed necessary and reasonable by the long-term care ombudsman for the performance of the duties and functions under this chapter.

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

(c) A long-term care facility shall permit access by the long-term care ombudsman or 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 aging.

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

§ -10 Retaliatory acts by facilities or facility employees prohibited. (a) No resident of a long-term care facility seeking advocacy assistance as provided for in section -7 or making a complaint concerning a long-term care facility or any of its employees shall be subject to any retaliatory act by the long-term care 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 -7 or making a complaint concerning a long-term care facility or any of its employees on behalf of a resident of a long-term care facility shall be subject to any retaliatory act by the long-term care 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 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.

§ -11 Wilful interference; prohibited. Any individual, including any long-term care facility or long-term care facility employee, who wilfully interferes with or impedes the long-term care ombudsman or designee in the performance of the long-term care ombudsman's or designee's duties pursuant to this chapter 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.

§ -12 Posting and distribution of information. (a) The long-term care ombudsman shall provide each long-term care 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 shall provide each resident of the long-term facility 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."

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. The department of aging shall be headed by a single executive to be known as the director of aging. The department of aging shall have primary jurisdiction over all matters relating to the administration of the State's aging programs, except as otherwise provided by law."

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

"§26-4 Structure of government. Under the supervision of the governor, all executive and administrative offices, departments, and instrumentalities of the state government and their respective functions, powers, and duties shall be allocated among and within the following principal departments that are hereby established:

(1) Department of human resources development (Section 26‑5)

(2) Department of accounting and general services (Section 26-6)

(3) Department of the attorney general (Section 26-7)

(4) Department of budget and finance (Section 26-8)

(5) Department of commerce and consumer affairs (Section 26-9)

(6) Department of taxation (Section 26-10)

(7) University of Hawaii (Section 26-11)

(8) Department of education (Section 26-12)

(9) Department of health (Section 26-13)

(10) Department of human services (Section 26-14)

(11) Department of land and natural resources (Section 26‑15)

(12) Department of agriculture (Section 26-16)

(13) Department of Hawaiian home lands (Section 26-17)

(14) Department of business, economic development, and tourism (Section 26-18)

(15) Department of transportation (Section 26-19)

(16) Department of labor and industrial relations (Section 26-20)

(17) Department of defense (Section 26-21)

(18) Department of public safety (Section 26-14.6)[.]

(19) Department of aging (Section 26- )."

SECTION 5. 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) Effective July 1, 2004, the salaries of all department heads or executive officers of the departments of accounting and general services, aging, 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 as last recommended by the executive salary commission. Effective July 1, 2007, and every six years thereafter, the salaries shall be as last recommended by the commission on salaries pursuant to section 26‑56, unless rejected by the legislature; and

(4) The salary of the adjutant general shall be $85,302 a year. Effective July 1, 2007, and every six years thereafter, the salary of the adjutant general shall be as last recommended by the commission on salaries pursuant to section 26‑56, unless rejected by the legislature, except that if the state 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 6. Chapter 349, Hawaii Revised Statutes, is repealed.

SECTION 7. All rights, powers, functions, and duties pertaining to elder affairs in existing state programs, as they apply in this Act, are transferred to the department of aging.

All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

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.

If 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 8. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held relating to the functions transferred to the department of aging shall be transferred with the functions to which they relate.

SECTION 9. (a) The governor shall convene a working group on interagency relations to develop a comprehensive plan for transferring certain rights, powers, functions, duties, and resources to the newly established department of aging.

(b) The comprehensive plan shall identify:

(1) All state programs for the elderly, by department, division, and program identification;

(2) Each position to be transferred by position number; and

(3) All moneys budgeted in support of each position to be transferred, including moneys for direct and indirect employee benefits, at the lowest level on the state program structure.

(1) Three members appointed by the president of the senate;

(2) Three members appointed by the speaker of the house of representatives;

(3) Three members appointed by the governor;

(4) The attorney general or the attorney general's designee;

(5) The director of health;

(6) The director of human services;

(7) The director of the executive office on aging; and

(8) Private organizations providing elder services, including Na Tutu, Grandparents Raising Grandchildren.

SECTION 10. The working group on interagency relations shall cease to exist on June 30, 2014.

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect on July 1, 2014; provided that section 9 shall take effect upon the approval of this Act.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	936
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII