03/29/2018 01:30 PM Senate LABOR & COMMERCE

           HB 275-EXTEND: BOARD OF MASSAGE THERAPISTS                                                                       
                                                                                                                                
1:54:40 PM                                                                                                                    
CHAIR  COSTELLO  announced the  consideration  of  HB 275.  [CSHB
(FIN) was before the committee.]                                                                                             
                                                                                                                                
1:54:47 PM                                                                                                                    
CRYSTAL  KOENEMAN, Staff,  Representative  Sam  Kito III,  Alaska                                                               
State  Legislature,   Juneau,  Alaska,  said   Legislative  Audit                                                               
recommends  a  four-year  extension  for  the  Board  of  Message                                                               
Therapists. It  was created  in 2015.  The original  estimate was                                                               
that it  would license 600  massage therapists, but from  2015 to                                                               
2017 the  board issued 1,186  licenses. There are  always growing                                                               
pains   with  a   new   board.  The   audit   found  the   annual                                                               
fingerprinting in statute may be  too burdensome to the licensees                                                               
and the department in processing  those. HB 275 not only includes                                                               
the board extension but also  changes the fingerprint requirement                                                               
from  biannual to  once  every  six years.  The  audit had  three                                                               
recommendations, which Kris Curtis will  cover. She noted who was                                                               
available for questions.                                                                                                        
                                                                                                                                
1:56:38 PM                                                                                                                    
KRIS  CURTIS, Legislative  Auditor,  Legislative Audit  Division,                                                               
Alaska State  Legislature, Juneau,  Alaska, reviewed  the October                                                               
2017 audit findings  of the Board of Massage  Therapists. This is                                                               
its first sunset review since the  board was created in 2015. The                                                               
audit  found the  board was  meeting the  public interest  in all                                                               
areas  except  licensing.  In general,  meetings  were  conducted                                                               
effectively,  investigations  were appropriately  processed,  and                                                               
the board actively  issued or changed regulations  to improve the                                                               
industry. In  regard to licensing, testing  found that applicants                                                               
were  not   consistently  issued  licenses  in   accordance  with                                                               
statutes, regulations, and/or procedures.                                                                                       
                                                                                                                                
MS. CURTIS  said additionally,  an FBI  audit was  conducted that                                                               
found that  improvements are  needed to  comply with  the federal                                                               
standards  for criminal  history record  information obtained  as                                                               
part  of  the  licensing process.  Legislative  Audit  recommends                                                               
extending the board for four years.                                                                                             
                                                                                                                                
MS. CURTIS pointed  out the licensing activity on page  11 of the                                                               
audit.  As Ms.  Koeneman said,  the board  has issued  double the                                                               
number of licenses from what was expected.                                                                                      
                                                                                                                                
MS.  CURTIS said  the schedule  of revenues  and expenditures  on                                                               
page 14 shows the  board has a surplus of $265,000  at the end of                                                               
FY2017.  License fees  were  lowered for  FY2018  to address  the                                                               
surplus.                                                                                                                        
                                                                                                                                
MS. CURTIS went over the  first recommendation, beginning on page                                                               
17:                                                                                                                             
                                                                                                                                
     Recommendation  1: Division  of Corporations,  Business, and                                                               
     Professional Licensing's  (DCBPL) director,  in consultation                                                               
     with the  Board of  Massage Therapists (board),  should take                                                               
     action   to   improve   procedures   to   ensure   licensure                                                               
     requirements are met.                                                                                                      
                                                                                                                                
MS.  CURTIS  said they  found  three  errors  in the  31  license                                                               
applications tested. In  one case, a background  check report for                                                               
one  initial  applicant  was  not  completed  and  the  applicant                                                               
operated for  two years without  a background check.  Second, one                                                               
applicant answered  "yes" to a professional  fitness question and                                                               
no evidence showed the applicant  provided an explanation. Third,                                                               
one applicant  answered "yes" to a  professional fitness question                                                               
and  provided  an  explanation   which  included  evidence  of  a                                                               
permanent  revocation  of  a  national  board  certification  for                                                               
violating  the  respective  code   of  ethics  and  standards  of                                                               
practice. The applicant was awarded  a license on the requirement                                                               
that  the  applicant take  a  two-hours  ethics course.  Standard                                                               
procedures  called  for  the  application   to  be  forwarded  to                                                               
investigations  for  further review.  The  lack  of thorough  and                                                               
timely evaluation does increase the risk to public safety.                                                                      
                                                                                                                                
MS. CURTIS reviewed the second recommendation.                                                                                  
                                                                                                                                
     Recommendation 2: DCBPL's director should address the                                                                      
     Federal Bureau of Investigations (FBI) audit findings                                                                      
     and concerns.                                                                                                              
                                                                                                                                
MS.  CURTIS said  the FBI  audit  conducted in  April 2017  found                                                               
DCBPL used  an unsecured website  to route  confidential criminal                                                               
history.  Applicants  were not  notified  in  writing that  their                                                               
fingerprints were  to be  used for an  FBI background  check. The                                                               
federal  audit   found  an  inadequate  chain   of  custody  over                                                               
fingerprint  cards, which  is important  because  it ensures  the                                                               
integrity  of the  applicant/fingerprint process.  As of  October                                                               
2017,   the   division   application  informs   applicants   that                                                               
fingerprints will  be sent  to the FBI  for a  federal background                                                               
check, but the other issues were still outstanding.                                                                             
                                                                                                                                
MS. CURTIS reviewed the third recommendation:                                                                                   
                                                                                                                                
      Recommendation 3: The director of the Office of the                                                                       
      Governor, Boards and Commissions should work to fill                                                                      
     the public member position.                                                                                                
                                                                                                                                
MS.  CURTIS said  the  public member  position  became vacant  in                                                               
March of  2017. Statute requires  that the public member  may not                                                               
be a licensed  health care provider, employee of the  state, or a                                                               
current or  former member of another  occupation licensing board.                                                               
The director  said these requirements  are too stringent  to find                                                               
interested  applicants.  The  response  from the  Office  of  the                                                               
Governor is  on page 29 of  the audit. The audit  does agree with                                                               
the  recommendation   regarding  the   vacancy  and   believes  a                                                               
statutory fix is necessary.                                                                                                     
                                                                                                                                
MS.  CURTIS  said  the  Department  of  Commerce,  Community  and                                                               
Economic  Development  response is  on  page  31. The  department                                                               
agrees  that  checks  are needed  to  ensure  the  administrative                                                               
record  is  complete,  but they  believe  additional  supervisory                                                               
resources  are  needed  to meet  that  standard.  The  department                                                               
considered the  April 2017  FBI audit to  be new  information and                                                               
believes  that  they  are  responding   quickly  to  address  the                                                               
recommendations.  The  board's response  is  on  page 33  and  it                                                               
agrees with the audit's conclusions and recommendations.                                                                        
                                                                                                                                
2:02:31 PM                                                                                                                    
SENATOR GARDNER said she had  been contacted by a constituent who                                                               
was concerned about the background  check process. She asked if a                                                               
person discloses  a prior  problem or the  FBI reports  that they                                                               
have  something on  their record,  what would  disqualify someone                                                               
from getting a license.                                                                                                         
                                                                                                                                
MS.  CURTIS said  that on  page 6  of the  audit they  go through                                                               
professional  fitness  questions   and  provide  some  background                                                               
information. Statute  guides the fitness conditions  and requires                                                               
the following of an applicant:                                                                                                  
                                                                                                                                
     Has  not  been  convicted  of, or  pled  guilty  or  no                                                                    
     contest to,  a crime involving moral  turpitude, or who                                                                    
     has been  convicted of,  or pled  guilty or  no contest                                                                    
     to,  a crime  involving  moral turpitude  if the  board                                                                    
     finds that the conviction  does not affect the person's                                                                    
     ability to practice competently and safely                                                                                 
                                                                                                                                
MS. CURTIS  said it is the  board's evaluation of the  support an                                                               
applicant provides  that would dictate the  board's decision. The                                                               
auditor just  looks at  whether they have  considered it  and the                                                               
adequacy of their  consideration. The audit found  no evidence of                                                               
whether the  applicant provided  additional information,  but the                                                               
board did  not follow  internal procedures  to ensure  a thorough                                                               
review of the information.                                                                                                      
                                                                                                                                
2:04:35 PM                                                                                                                    
CHAIR  COSTELLO  listed  the   individuals  available  to  answer                                                               
questions.                                                                                                                      
                                                                                                                                
2:05:10 PM                                                                                                                    
VOLKER HRUBY, President, American  Massage Therapy Association of                                                               
Alaska, Anchorage,  Alaska, testified  in support  of HB  275. He                                                               
said it makes sense to continue this board.                                                                                     
                                                                                                                                
CHAIR  COSTELLO asked  the board  chair,  Mr. Smith,  if he  sees                                                               
challenges implementing the recommendations.                                                                                    
                                                                                                                                
2:05:48 PM                                                                                                                    
DAVID EDWARDS-SMITH,  Chair, Board of Massage  Therapists, Kenai,                                                               
Alaska, said  no, but  the chain of  custody for  the fingerprint                                                               
cards is  beyond the control  of the board  or division. It  is a                                                               
national issue for anyone not using  a Rap Back [Record of Arrest                                                               
and Prosecution Background] program for fingerprints.                                                                           
                                                                                                                                
SENATOR GARDNER asked about the program.                                                                                        
                                                                                                                                
MR. SMITH  said Rap Back is  a program that allows  a division to                                                               
retain single  fingerprints on file  and update them.  This would                                                               
require authorization by statute.  Alaska currently does not have                                                               
the  ability   to  request  an   FBI  background   check  without                                                               
initiating a background check without a fingerprint card.                                                                       
                                                                                                                                
SENATOR  GARDNER  asked for  clarification  of  the name  of  the                                                               
program.                                                                                                                        
                                                                                                                                
MR. SMITH replied the name is Rap Back.                                                                                         
                                                                                                                                
2:07:50 PM                                                                                                                    
CHAIR COSTELLO opened and closed public testimony on HB 275.                                                                    
                                                                                                                                
2:08:20 PM                                                                                                                    
SENATOR  MICCICHE  moved  to report  HB  275,  30-LS1185\J,  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
2:08:38 PM                                                                                                                    
CHAIR COSTELLO  announced that  without objection,  CSHB 275(FIN)                                                               
moves from the Senate Labor and Commerce Standing Committee.