Legislature(1993 - 1994)
03/16/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 376 - ASSIST & PROTECT VULNERABLE ADULTS CONNIE SIPE, Executive Director of the Division of Senior Services, Department of Administration, testified that this legislation is a bill that has been worked through inter-agency as part of the Governor's package of reform bills. Currently, we have an elder abuse reporting law and a mandatory reporting requirement for abuse of adults. House Bill 376 essentially combines them into one statutory section as an act protecting vulnerable adults. She further stated that the bill would allow the department to make more of a distinction between those who can take care of themselves and those who need the intervention of the state. It would also streamline abuse reporting and reduce the duplication of state agencies who have had the jurisdiction to investigate abuse, especially in the nursing home, or a facility situation where we would have Family and Youth Services, the Nursing Home Certification Licensing people, and the long-term care ombudsman all having jurisdiction and all investigating the same incident of abuse. Ms. Sipe indicated that 38 percent of the reports of abuse are actually requests for services from someone and this legislation would consolidate those requests. This legislation would allow the department to handle a case to criminal authorities for prosecution despite a request to have the case dropped by a relative or nonvulnerable adult. MS. SIPE stated that amendments to the state's confidentiality law incorporated in the bill would allow agencies to share certain information, on a need to know basis, with the reporter of the abuse. Also, this bill adds a section on surrogate decision makers. This would allow for a circumstance where a person appears to be incapable of making decisions, which would qualify them eventually for a guardianship, or they're temporarily unable to consent, temporarily, to protective services. This would allow a decision to be made for them, especially in an emergency situation. She stated that it was only meant to be used for certain limited situations. MS. SIPE further stated HB 376 incorporated provisions that would spell out how the division could petition the court to carry out adult protective services when the case may arise. She indicated that major changes in HB 376 are in the definition section. The definition of abuse was redefined to focus on intentional or reckless abuse. Next, the definition of neglect was now defined to focus on intentional failure to provide care. It can't be interpreted as just an inability to provide care. Additionally, a new definition of "exploitation" is created which includes exploitation against a person as well as resources. PATRICIA DENNY, Executive Director of the Older Alaskans Commission, Department of Administration, testified in support of HB 376. She further testified that the Older Alaskans Commission has been in support of this type of legislation for several years and she felt this was a new opportunity for services not covered in existing or previous law. REP. GREEN asked to explain the fiscal notes. MS. SIPE responded that the Division of Family and Youth Services was handling the caseload now and the function has never been funded, thus the fiscal notes would address this issue. Further, Ms. Sipe indicated that training would be provided with funds in the fiscal note. What the fiscal note shows is that all the resources in Family and Youth Services for adult protective services are going to be transferred to the Division of Senior Services. So there is no new funding. REP. JAMES responded that the fiscal notes do not reflect that there are no increases or decreases in funding. MS. SIPE responded that what she has in her packet was a fiscal note from the Division of Senior Services which shows a total fiscal note cost in FY 95 of $559,600 and five full-time positions. Then, there should be a zero fiscal note from the Pioneer Homes section which shows they are going to transfer empty positions. There should be a fiscal note from Family and Youth Services showing a deletion of $559,600 from their budget to come over. CHAIRMAN PORTER inquired whether on page 5, line 18, the vulnerable adult who is 60 years of age or older was to be left as is or did she want to cover all of them again? MS. SIPE responded that this was the section they struggled with to reduce the number of state agencies that go in. She elaborated that by federal law and state statute that follows it, a long-term care ombudsman who has jurisdiction to look into any complaints that occur in our out of home care facilities such as a Nursing Home, a Pioneer Home, etc. But his jurisdiction only starts at age 60 by federal and state law. So for people over 60 there are two, a long-term ombudsman and the medical and certification licensing for that nursing home who have authority. For people under 60 they have a licensing authority. CHAIRMAN PORTER inquired on page 6, line 28, the sentence which begins with "the department or its designee shall conduct a face-to-face interview with the subject of the report unless that person is unconscious or the department or its designee has determined that a face-to-face interview could further endanger the vulnerable adult." He asked, do you mean the subject to be the same person as the vulnerable adult in that sentence? MS. SIPE responded yes. CHAIRMAN PORTER referred to page 7, line 20, where it says "upon request a person who has made a report to the department under the reporting requirement regarding a vulnerable shall be notified of the status of the investigation," and asked if we are to presume that this status information is only going to go to these people who are listed who are required to report, or is this any person who happens to file such a report? MS. SIPE responded that if they are the required reporters under AS 47.24.010(a), yes, but under AS 47.24.010(d) allows any other person from reporting cases of abandonment, neglect, abuse, harm, etc. It is going to come to the attention of that person anyway, whether in their professional duty or because they are a neighbor or they are a family member, so this applies to everyone under 010. Required reporters and voluntary reporters can get the status of the investigation or the status of the case. The statute, though, does allow the division discretion to not necessarily give out all the confidential facts of this person's life. Status means telling if the person is now safe. But the term covers any reporter. CHAIRMAN PORTER then asked whether the division was interpreting this to change any existing confidentiality requirements. MS. SIPE responded that this was a slight change because previously it was not mandatory that they be given this information before this status report. It has been the practice of the division to usually do it but it has not been stated in law. CHAIRMAN PORTER inquired as to whether the division would object to changing the language to make sure this is not a requirement to otherwise disclose confidential information. MS. SIPE responded yes. CHAIRMAN PORTER referred to page 9, line 10, where it says "notwithstanding (a) of this section, if the department determines that an emergency situation exists that necessitates provision of the protective services to a vulnerable adult, the department may provide the necessary protective services in a manner determined..." and stated, these would be temporary protective services, would they not? MS. SIPE responded yes. CHAIRMAN PORTER remarked that it may very well be that this would turn out to be sustained protective service, but there would be a commitment order. MS. SIPE responded yes. Or there may consent obtained after the emergency situation passes. CHAIRMAN PORTER asked if the division would object to "temporary protective services" on line 11. MS. SIPE responded that would be fine. CHAIRMAN PORTER inquired if page 11, line 9, "An employer or supervisor who makes a good faith report..." was a standard whistle blower provision and if it was really necessary. MS. SIPE responded that each whistle blower statute is usually tied to something and there was no general whistle blower statute that covers everything. CHAIRMAN PORTER then asked whether there was some case law on defining "good faith report" from other statutes. MS. SIPE responded that there was a body of law out there. CHAIRMAN PORTER referred to page 11, line 13, where it says "the person making the report may bring a civil action for compensatory and punitive damages against an employer or supervisor who violates this subsection." He asked why are we saying so and are we asking them to do that? MS. SIPE responded that you can have different rights under a statute. Usually the statute will define whether you have a right to actually be compensated for a loss. The law will also say whether you have a right to punitive damages, for instance, in a bad faith situation where an employee blows a whistle on a nursing home or something. So unless the law says the level you have, the only alternative would be to ask the courts for an injunction reinstating me to my job and I couldn't get compensation for the lost wages, nor can I get any punitive damages. REP. GREEN stated on page 2 of the fiscal note analysis of the senior services administration it says "purchase protective services, adult/residential" and asked if that was home. MS. SIPE responded that it's not a home that's purchased. Adult protective services now, if it finds a person who can't live safely at home, and they have been the victim of abuse or neglect, and if they don't have the money to buy their own placement, we'll pay for them to be placed in an adult foster home or an adult foster care center. They chip in their own monthly resources or income and then family and youth services makes up the difference, which maxes out now at $43.00 per day. So this is the contract money currently used which is being transferred. CHAIRMAN PORTER tabled discussion on HB 376 for a later date and brought HB 517 before the committee for discussion.
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