Legislature(2001 - 2002)
04/22/2002 01:43 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 180 - BACKGROUND CHECK OF YOUTH WORKER Number 0281 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 180, "An Act requiring child services providers to obtain criminal background checks for child services workers." [Before the committee was CSHB 180(HES).] Number 0289 REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor, explained that HB 180 will update the statutes pertaining to licensing of foster homes, residential child care facilities, semi-secure residential child care facilities, secure residential psychiatric treatment centers, child placement agencies, and maternity homes, all of which are currently listed in AS 47.35.010. She observed that the legislature has already established a policy of protecting children through the use of background checks. She mentioned that this update will conform Alaska's statutes to the "Adoption & Safe Families Act" (ASFA), which was passed by Congress and signed into law by President Clinton in 1997. She noted that the goal of the ASFA was to promote safety for the nation's children; Congress and the administration became concerned after hearing reports that children were being left in, or returned to, unsafe situations. REPRESENTATIVE McGUIRE explained that the second part of HB 180 creates a task force that will research the topic of criminal background checks for other entities that provide services to or that have direct or immediate contact with children in Alaska. She said that she has been researching ways to better protect children who participate in various children's clubs and activities. She relayed that the concept of HB 180 originated when she learned that an individual with a history of sexual predation had molested a constituent's child. The task force created by HB 180 will analyze whether more can be done to protect children in areas other than the aforementioned institutions, and will be composed of five members of the legislature, four members of the public who are child service providers, and possibly commissioners or designees of certain administrative departments. Because of concerns about budgetary constraints, she added, rather than simply requiring background checks for all groups that perform services for children, the task force created by HB 180 will research the issue and provide a report to the legislature. REPRESENTATIVE McGUIRE noted that a sectional analysis has been provided, adding that with the exception of a provision that will allow for the discretionary denial of licenses, there are no major policy changes in HB 180. Currently, a license is automatically denied if an individual has been convicted of certain crimes; this aforementioned provision - Section 4 - lists other crimes for which the department will have the discretion to deny a license. Section 4 allows the department to analyze whether a person should be issued a license if, within the preceding five years, that person has been convicted of the crimes listed therein. She mentioned that Section 1 allows the department to accept licenses issued by other entities that have state of federal licensing authority, and that this provision will facilitate placement. Number 0801 CHAIR ROKEBERG asked Representative McGuire how "wedded" she was to the creation of the task force, and how the fiscal note could be zero. REPRESENTATIVE McGUIRE said that fiscal note is zero because the plan is to use existing resources. In response to another question, she said that with HB 180, the Joint Committee on Administrative Regulation Review (JARR) is not creating new regulations; rather, the JARR will simply "look at the possibility that solving the problem may be addressed through regulations, ... through laws, or perhaps ... through ... something called the 'safe seal program' ... [which] is patterned after the Better Business Bureau." REPRESENTATIVE MEYER said he supports HB 180. Number 0966 JOANNE GIBBENS, Program Administrator, Central Office, Division of Family & Youth Services (DFYS), Department of Health & Social Services (DHSS), in response to a question, said that Section 3 outlines the federal requirements in terms of denial of licensure. There are two parts to Section 3, she explained: one part - subsection (a) - provides for the mandatory denial of a license if one has been convicted of any the crimes listed therein, and the other part - subsection (b) - provides for the mandatory denial of a license if one has been convicted within the previous five years of any the crimes listed therein. She noted that the federal law refers to felony convictions; therefore, to conform with the federal law, if there have been any felony convictions, the state is not allowed to issue a license. CHAIR ROKEBERG noted that Sections 3 and 4 refer to the issuance of an initial license. He asked, "What if you already have a license?" MS. GIBBENS explained that that circumstance is addressed in Sections 7, 8, and 10. For the first year, the state issues a provisional license, and at the end of that year, the division can authorize a biennial license, which must be renewed every two years. During the renewal process, a background check is performed again to ensure that none of the prohibited crimes have been committed. Also, if a provider discovers that an employee has committed one of the prohibited crimes, the provider must notify the department and take appropriate action. REPRESENTATIVE McGUIRE referred to Section 13, and mentioned that it "comports with the federal-level effort at trying to get kids in safe places." Section 13, she offered, says that "you don't automatically have to shut down, putting those kids out of a place to stay: if you're currently operating [a facility], and an employee discloses that serious offense and ... you take action to remove that employee, you can continue operating." REPRESENTATIVE JAMES asked what other licensure requirements are there that specifically relate to a person's ability to "do the job." Are there any other criteria other than simply being free of criminal charges? MS. GIBBENS said that there are extensive licensing regulations already in existence, both for foster homes and for residential care facilities, that specifically address other safety issues related to children, such as the type of facility, the size of the rooms, the type of treatment, and the type of discipline. Number 1230 REPRESENTATIVE McGUIRE noted that AS 47.35.017 contains the statutory requirements for licensure of foster homes, residential child care facilities, semi-secure residential child care facilities, secure residential psychiatric treatment centers, child placement agencies, and maternity homes. She also noted that the department has promulgated regulations that dovetail with these statutory requirements. REPRESENTATIVE JAMES remarked that her concern centers on what is required of the employees in those types of facilities. MS. GIBBENS said that there are regulations governing employees' qualifications. There are certain requirements for training; the division prefers individuals to have at least a bachelor's degree, but that may be waived, since grantees are required to provide a certain level of training to staff. REPRESENTATIVE JAMES said she is concerned about the requirements for people who work in child care centers, adding that it is unlikely that those employees will have bachelor's degrees. Aside from checking an individual's criminal record, she asked, what other protections are there with regard to how much those employees are required to know. MS. GIBBENS asked to defer that question to the Department of Education and Early Development, which is the licensing authority for daycare programs. She noted that HB 180 does not have anything to do with child care workers in daycare centers. REPRESENTATIVE COGHILL remarked that Section 2 refers to domiciliary services, and that this is another situation where "they've already done it and now we're going to put it in statute." He opined that the emergence of boarding schools and charter schools that provide boarding services has created the need for Section 2. Number 1418 REPRESENTATIVE JAMES opined that there ought to be a broader application of the protections offered in [HB 180], so that they also pertain to child care facilities offering daycare. She reiterated that she wants to know "what kind of training these people have." REPRESENTATIVE McGUIRE offered that she does have another proposal for a bill that would address the issues raised by Representative James. REPRESENTATIVE BERKOWITZ opined that the proposed language in Section 5 appears to be somewhat of a retreat from the protections that children currently enjoy, because under existing statute, licenses can be pulled if someone is arrested for, charged with, or convicted of a serious offense, whereas the proposed language stipulates that a license can only be pulled if someone is convicted of a crime listed in proposed AS 47.35.19(a). So even if there is probable cause to believe that someone has committed any of these crimes, the protections that currently exist would be taken away. He offered that although the language proposed in Section 5 refers to a more discrete list and is preferable to simply saying "a serious offense", he would also like to see the insertion of "been indicted for or convicted of" after "has" on page 4, line 25. He indicated that he does not mind if the new language does not refer to the arrest stage, since arrests are sometimes "charged high or there might not be proof to bear it out." Whereas with an indictment, he noted, at least it's gone through a modicum of process: "it's a felony, a grand jury's heard it, there's been some vetting." REPRESENTATIVE McGUIRE said she would consider Representative Berkowitz's suggestion to be a friendly amendment, adding that it would make the bill stronger. Number 1597 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1 on page 4, line 25: After "has" delete "a conviction for", and insert "been indicted for or convicted of". There being no objection, Amendment 1 was adopted. REPRESENTATIVE BERKOWITZ then noted that the task force to be established by HB 180 appears to be focusing on a fairly discrete question. He said: "I was wondering if there's any other research on whether sufficient criminal background checks exist, and have we done any budget audits? Are there a rash of complaints? I was sort of wondering what the empirical evidence is, that we're starting with today." REPRESENTATIVE McGUIRE replied that her staff has done extensive research regarding what other states have done, and that there have not been any budget and audit reports done because this isn't currently an area that requires licensure. She offered that establishing the task force involves making a fundamental policy change regarding whether to step into an area that doesn't currently require licensure, such as when a parent takes a child and puts him/her under the direct supervision of an adult in a volunteer situation. She said that there is a lot of evidence showing that there are problems in this area. She offered that such evidence "comes from the community," adding that she has received over 100 e-mails from people in the community whose children have been victimized, sometimes by people who are prior offenders. At issue, she said, is that sexual predators tend to seek out opportunities where they have direct contact and control over children. REPRESENTATIVE BERKOWITZ noted that [the task force] has a zero fiscal note, adding that to "make things go away," it requires an act of legislative legerdemain. He asked how that came to pass. REPRESENTATIVE McGUIRE reiterated that she, in collaboration with the department, has decided to use existing resources. REPRESENTATIVE BERKOWITZ said he has a concern regarding the constitutionality of the first sentence in subsection (b) of Section 14, located on page 9, lines 2 and 3. He elaborated: "In essence, we are passing an act of specific legislation for an individual - that would be the chair of the [Joint Committee on Administrative Regulation Review]." REPRESENTATIVE McGUIRE offered that instead, the language could simply say, "the task force shall be appointed by the Speaker of the House [of Representatives]." Number 1785 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment : To delete the line beginning "The" and ending "force" on page 9 [lines 2 and 3]. And then the [commensurate] change would be on line 4: instead of "two additional members", it would read "three members of the House". REPRESENTATIVE McGUIRE offered an amendment to Amendment : "one of which who will chair". REPRESENTATIVE JAMES asked [of the report], "Is it going to get done this summer?" REPRESENTATIVE McGUIRE said that [lines 18 and 19] stipulate that the recommendations will be presented to the legislature in a written report by January 21, 2003. She said she would agree to an amendment changing the date to February 21, 2003. Number 1862 REPRESENTATIVE MEYER made a motion to adopt Amendment 2, on page 9, line 19: Delete "January" and insert "February". REPRESENTATIVE BERKOWITZ asked: "What happens to legislative members who are on the [task force] once there's a new legislature?" CHAIR ROKEBERG noted that the change being discussed pertains to when the report is due. REPRESENTATIVE JAMES suggested that perhaps those legislators would become public members. REPRESENTATIVE BERKOWITZ questioned that possibility. REPRESENTATIVE McGUIRE noted that HB 180 does not specifically require a legislator to present the report. She said that she envisions that the task force will be doing the bulk of its work during the interim. Number 1910 CHAIR ROKEBERG noted that there were no objections to Amendment 2. Therefore, Amendment 2 was adopted. Number 1946 REPRESENTATIVE BERKOWITZ restated his motion to adopt Amendment 3: After deleting all of the first sentence in subsection (b) on page 9, it should read: "The speaker of the House of Representatives shall appoint three members of the House as voting members, one of whom shall serve as chair". REPRESENTATIVE JAMES said she has concern with that amendment because there will be three Representatives and only two Senators, which doesn't seem balanced. REPRESENTATIVE BERKOWITZ indicated that the language also ought to stipulate that a member of the minority be on the task force. CHAIR ROKEBERG noted that that is typically the case. REPRESENTATIVE McGUIRE added that that is her intention as well. Number 2025 CHAIR ROKEBERG restated Amendment 3, and noted that there were no objections to the adoption of Amendment 3. Therefore Amendment 3 was adopted. Number 2040 REPRESENTATIVE JAMES made a motion to adopt Amendment 4, to have only two members of the House appointed to the task force. REPRESENTATIVE BERKOWITZ objected. REPRESENTATIVE McGUIRE explained that originally, the task force was set up to have an even number of voting members; because of concerns expressed in another committee, however, the language was changed to allow for an odd number of voting members - five legislative members and four public members. Number 2118 REPRESENTATIVE JAMES, after some discussion regarding possible membership makeup, made a motion to adopt Amendment 4, which she restated as providing that the Speaker of the House shall appoint two members from the House, that the President of the Senate shall appoint two members from the Senate, that there shall be five public members, and that the task force shall appoint its own chair. Number 2144 CHAIR ROKEBERG made a motion to amend Amendment 4 such that each body of the legislature appoint [a member from the majority caucus and a member from the minority caucus] for a total of four members. There being no objection, the amendment to Amendment 4 was adopted. REPRESENTATIVE JAMES, for clarification, indicated that the Speaker of the House and the President of the Senate shall, together, appoint the public members. Number 2193 CHAIR ROKEBERG noted that there were no objections to Amendment 4, as amended. Therefore, Amendment 4, as amended, was adopted. [For the benefit of the reader, the end result is that Amendment 3 merely deletes the first sentence of subsection (b) on page 9, and Amendment 4, as amended, addresses the appointment to and the composition of the task force.] CHAIR ROKEBERG asked whether HB 180 only applies to licensure of new facilities. MS. GIBBENS indicated that HB 180 addresses licensure of existing facilities, noting that currently such facilities have to go through a licensure procedure. The only thing new, she remarked, is the addition of boarding schools, which are not currently explicitly addressed in statute. Number 2223 JACK F. BOWEN, Alaska Fast Pitch Softball Association (ph), testified via teleconference. He said that his organization requires that a background check be run on individuals prior to their being allowed to work with youth. He opined that HB 180 is a step in the right direction, and that one of the best things about it is the formation of the task force, which will be able to present information to the legislature regarding other areas that need to be looked at with regard to licensing and background checks. REPRESENTATIVE JAMES commented that someday, background checks may have to be performed on everyone who works with or around children, although such a requirement may not necessarily need to be legislated. CHAIR ROKEBERG closed the public hearing on HB 180. REPRESENTATIVE MEYER said he agrees with Representative James: everyone who works in the field of daycare should have a background check. REPRESENTATIVE JAMES said that it is not so much that a person's criminal history would preclude him/her from working in this field, as it is that people should be made aware of what an individual's history is. MS. GIBBENS, in response to a question, noted that HB 180 does not apply to private daycare centers, although the Department of Education and Early Development has extensive, existing statutes that address background checks for licensed child care centers. REPRESENTATIVE McGUIRE, in response to a question, said that she is not familiar with those particular statutes, but posited that they are probably similar to DHSS's statutes regarding crimes that disqualify a person from working in a given field. To clarify, she reiterated that via HB 180: "We are updating the licensing requirements for foster homes, residential child care facilities, semi-secure residential child care facilities, secure residential psychiatric treatment centers, child placement agencies, [and] maternity homes." CHAIR ROKEBERG called an at-ease from 2:34 p.m. to 2:35 p.m. Number 2372 REPRESENTATIVE MEYER moved to report CSHB 180(HES), as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 180(JUD) was reported out of the House Judiciary Standing Committee.