Legislature(2001 - 2002)

04/22/2002 01:43 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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 [3]:                                                                  
                                                                                                                                
     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  [3]:                                                               
"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.                                                                                                                      

Document Name Date/Time Subjects