Legislature(1993 - 1994)
04/08/1994 01:45 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN RIEGER introduced SB 268 (COMMUNITY CARE FACILITIES) as the next order of business before the committee. PAT O'BRIEN, Department of Health and Social Services, stated that SB 268 is part of the Adult Protective Services and the Licensing of Adult Facilities bills which the committee has already reviewed. She pointed out that licensing is a risk reduction activity. She reviewed the pie chart in the committee's packet. Currently, there is only 50 percent of the staff necessary to meet the licensing standards; therefore, SB 268 attempts to become more efficient by consolidating various procedures. She said that SB 268 would condense the amount of documents a licensing person must review. This is important for the native associations who are receiving independent funding and want to be partners with the state in order to perform licensing evaluations. Licensing needs to be simplified for the field offices as well. Ms. O'Brien explained that if the Assisted Living bill, and the Vulnerable Adults bill passes then the Division of Family and Youth Services (DFYS) would focus on children. That would reduce the case load of licensing which would be helpful. She pointed out that SB 268 attempts to form a better relationship between DFYS and the parents in order to better monitor child care. She noted that private agencies who are interested in licensing with DFYS are also interested in liability protection which is addressed in SB 268. She informed the committee that SB 268 only deals with licensing procedures; program issues would be addressed in regulations rather than the bill. Number 132 CHAIRMAN RIEGER inquired as to the location of the liability protection provisions. He noted that there was a CS work draft. SENATOR SHARP moved to adopt the HES CS work draft for SB 268. Hearing no objection, the HES CS work draft was adopted. CHAIRMAN RIEGER pointed out that this was a work draft requested by DHSS. PAT O'BRIEN explained that they had held a statewide teleconference on SB 268 at which they discovered a flaw in the bill; grandparents and certain relatives were not made exempt from licensing requirements. In the House, a number of amendments were submitted which were reflected in the HES CS. She pointed out the sectional analysis provided in the committee's packet. SENATOR LEMAN asked if SB 268 would be moved or held. If the intention is to move the bill today, then perhaps more detail could be given to the bill. CHAIRMAN RIEGER said that he would rather move SB 268 today. PAT O'BRIEN began her overview of the sectional analysis. She pointed out that SB 268 reflects current practice. She said that they had started with the Assisted Living bill and had honed it down to parallel the current licensing practices. She noted the addition of statutes that cross reference the licensing statute. SENATOR LEMAN did not believe that those changes would effect the possession of a firearm statute. PAT O'BRIEN agreed that it would not effect that statute. PAT O'BRIEN explained that section 9 was a conforming amendment which states that the Administrative Procedures Act would apply in appeal hearings for the most rigid activities they take. Section 10 includes a purpose to the licensing statute which would be used in publications to inform facilities of the role of licensing and to notify parents of their responsibility in placing and monitoring their child in child care facilities. CHAIRMAN RIEGER asked if the reference to maintaining "standard levels for services" in various facilities would be the same or different standards that apply to each group. Number 231 PAT O'BRIEN said that the standard is the same and they attempt to apply it evenly across the state; a deviation would be considered a variance. CHAIRMAN RIEGER asked if the same standards would be applied whether it was a residential child care facility or a foster home. PAT O'BRIEN said no. She explained that the task force would help determine which standards should be the same. PAT O'BRIEN noted the change in title of the chapter in section 10 from "Institutions" to "Community Care Licensing." She continued with section 11 and its changes. Section 11 addresses the eventual adoption of fees. She also pointed out that section 11 would allow them to enter into agreements with individuals as well as organizations. The Municipality of Anchorage is the only city that has been delegated powers regarding licensing child care centers. Ms. O'Brien proceeded with section 12 regarding license exemptions. She pointed out that facilities on Coast Guard bases are exempt from licensure; however, the department would continue to license family child care homes in Cordova. She stated that the licensing statute was extended. Government operated programs are only exempt when specified; only the Municipality of Anchorage has the proficiency to license. She explained that the clause "to operate for 90 days without a license" was deleted because by that time damage could have already occurred. She pointed out that the definition of a child had been changed to "under 18 years of age." She said, "The exemption for an occasional placement of a child for adoption without a license has been deleted." Number 301 SENATOR LEMAN directed everyone to page 6, line 17 when asking if those were new exemptions requiring a license; is this covered in statutes. PAT O'BRIEN said that currently it is not in statute; the statute uses archaic terms such as "nursery" which means "day care facilities." All of those exemptions are currently in regulations except for the ones she had pointed out. Ms. O'Brien explained that they are attempting to consolidate the exemptions into statutes. SENATOR LEMAN referred to paragraphs 7 and 8 on page 6 when inquiring as to the number of children for which a facility could provide care without being licensed. PAT O'BRIEN clarified that a license is required if the facility provides care for five or more children. Facilities providing child care to four or less children are not required to be licensed. SENATOR LEMAN asked if there was a definition of "relative" as used in paragraph 8 on page 6. PAT O'BRIEN pointed out that the definitions could be found on page 22. Ms. O'Brien noted that "great grand-parent" was added to the list. SENATOR LEMAN asked if "cousin" referred to a first cousin. PAT O'BRIEN said that she assumed that it meant first cousin. PAT O'BRIEN continued the sectional analysis with the application for license issue. Section 13 is basically a consolidation of areas. She indicated that there had been much support for on-site inspections before a facility is licensed. She noted that only minimal licensing standards would be required in emergency situations. CHAIRMAN RIEGER posed an emergency situation in which a neighbor cares for the children while the parents leave the state. PAT O'BRIEN directed the committee to page 6, line 22 in which the child could be left with the neighbor indefinitely if the family made provisions for a child over nine years of age. Ms. O'Brien explained that with the 90 day clause in the definition of a foster home, there had not been concern. Perhaps, "continuing basis" could be defined by regulations to specify a time limit for a family emergency. Number 389 CHAIRMAN RIEGER asked if Ms. O'Brien was suggesting that page 22, line 6 be amended to limit the time to 90 days or 45 days. PAT O'BRIEN said that would probably solve the problem. Ms. O'Brien reiterated that this addresses a child eight years of age or younger; a parent can make any arrangement for a child nine years of age or older. CHAIRMAN RIEGER stated that he assumed that they were attempting to create a threshold that was significant enough that the government needed to step in. PAT O'BRIEN informed the committee that the department would not usually find out about such situations. Ms. O'Brien discussed the opinions from the teleconference regarding this issue. Ms. O'Brien recognized that they did not address the need for emergency placement of a child. Ms. O'Brien reiterated that the department would not know about such a situation; furthermore, since the placement would not be on a continuing basis so licensing should not be involved. CHAIRMAN RIEGER asked if page 7, line 17 referred to a professional arranging a foster home. He did not understand why an individual could not direct someone to a facility; under this language it appears to be illegal. PAT O'BRIEN informed the committee that in previous years many physicians and attorneys did make considerable money arranging placements for children. Then the appropriate safeguards were not in place and some abuses occurred. She said that was the reason for removing the exemption for placing up to three children without a license. She explained that the attorney who assisted in the drafting of SB 268 was sensitive to this issue because she arranges placement for children. The attorney did not believe the problem to be as big as it once was. She said that it was professional and every state has laws similar to this that do not allow for the arrangement of placement of children without a license unless it falls under one of the listed exemptions. CHAIRMAN RIEGER asked if Ms. O'Brien would have a problem with making it clear by saying "a person may not for compensation arrange foster care" in order to address those who do it as a business. SENATOR LEMAN related his experience arranging the placement of four children. He noted that he was assisted by professionals and did not receive any compensation. He tended to agree that some individuals were merely informing parties of a need and he did not believe this was intended to restrict that. PAT O'BRIEN explained that generally compensation is not a part of any type of licensing. Conceptually she understood, however she advised the committee not to change it to "all compensation" across the statute. She said that Senator Leman's situation sounded fine, but they are concerned when people are receiving a considerable amount of money which may lead to short cuts. Number 485 Ms. O'Brien continued with the sectional analysis beginning on page 10 regarding the denial of license and the right to appeal both of which are current practice. She noted that "waivers" had been changed to "variances" because it seems more appropriate. Page 11 regarding the content of license condenses five sets of regulations. She pointed out the House HES amendment which reduces extra paperwork involved in a short term variance. She explained that section 15 regarding orientation and training only refers to child foster homes in the statutes; although, it is required for all types of care. Therefore, this section generalizes and includes all types of care. She noted that with SB 268 they have the ability to waive the orientation and training requirement. She explained that they have always had conflicting advice from attorneys regarding records. Records are open to the public; however, they feel that some aspects of the records should be protected. She pointed out that foster parent information is particularly sensitive and should be protected. CHAIRMAN RIEGER inquired as to how the department would decide those matters. PAT O'BRIEN explained that page 12, line 31 would apply to her last comments. A foster parent's personal background statement would not be disclosed to the public. CHAIRMAN RIEGER supported the notion. He pointed out that other areas with confidentiality statutes assume confidentiality while a laundry list specifies the terms under which information can be disclosed. He expressed concern with page 12, line 31 regarding whether there could be a reasonable difference in opinion between the department and the parent as to whether something is private. He asked who would bear the burden of whether it should or should not be disclosed. PAT O'BRIEN said that the department would circulate regulations on the issue and ask for public opinion before the ultimate list is made. Ms. O'Brien informed the committee that most states determine that reference letters on foster parents or family child care providers are open while many would prefer those letters not be disclosed. SENATOR SHARP referred to page 13, lines 2-4 when inquiring as to where an annual financial report is addressed in SB 268. He felt that on the application the percentage of ownership of each individual should be present. He also suggested that there be an annual financial report. PAT O'BRIEN explained that licensing does not address funding except to assure sufficient funds for operating, such as with child placement agencies. The funding mechanism contracts is generally where such issues Senator Sharp addressed are regulated. SENATOR SHARP asked if that would apply to day care centers with numerous children. PAT O'BRIEN said that the largest day care centers can run up to 150. Most day care centers do receive a considerable amount of state funding. Ms. O'Brien pointed out that day care is administered by the Department of Community and Regional Affairs. Number 567 SENATOR SHARP stated that the Department of Community and Regional Affairs told him that they do not require financial reports to justify what they do with their grant money, etcetera. He thought that a condition of re-licensing should be to provide financial information. He said that he did not want to license them if they were not accountable. PAT O'BRIEN explained that child care subsidies are given to the parent who then pay the day care center; therefore, that is not a direct contract with the day care centers. Generally, the concerns that Senator Sharp expressed do not fall under licensing laws. Ms. O'Brien was unsure of what to suggest. SENATOR SHARP asserted that it was a big loophole. He informed the committee that many of the day care centers receive most of their funds through individuals who are granted funds which are funneled into the day care centers. Some of those centers are owned and ran by the municipality granting program. He said that he had data on the subject. PAT O'BRIEN said that she could review the issue. TAPE 94-29, SIDE B Number 593 PAT O'BRIEN continued with section 16 of the sectional analysis. She noted that SB 268 adds an annual self monitoring report. CHAIRMAN RIEGER expressed concern with line 17, page 18 regarding unannounced on-site foster care home inspections. PAT O'BRIEN explained that generally inspections are announced. She said that the department would possibly make an unannounced inspection as a plan of correction rather than more severe action, however, that is the exception. She informed the committee that the department more frequently does unannounced on-site inspections with child day care. PAT O'BRIEN pointed out that line 10, subsection (b), on page 13 is new in the monitoring and investigation section. This subsection encourages parents to monitor their child's care. A licensee will be required to provide the parent with a summary of the standards of that facility with a local number to report concerns. She said that parent involvement and being well-informed is very important. She mentioned that the department provides a six month license extension for a facility if the department does not perform the investigation in the appropriate time. She noted that the notice of changes had been updated and standardized. SENATOR LEMAN referred to page 14, line 28 when asking if it would be appropriate to insert "or conviction" after "charging" in order to close the loop. PAT O'BRIEN felt that would be a reasonable amendment. PAT O'BRIEN continued with the complaints section of the sectional analysis. She indicated that if the department has been doing positive licensing then there should not be many non-compliances. She pointed out that section 17 requires that a copy of the investigative report be mailed to the complainant, if requested. She noted the addition of the prohibition of licensee retaliatory action which would protect employees who report concerns. Probable cause has also been added to section 17 regarding the possibility of a search warrant. Number 530 SENATOR LEMAN inquired as to the type of mail to which this refers; would a fax be considered the same. PAT O'BRIEN said that she did not have a strong feeling about that, but pointed out that mailing it would be cheaper. Ms. O'Brien did agree that in certain circumstances the department may want to fax the copy of the report due to its quickness and then follow it up by mailing a copy as well. CHAIRMAN RIEGER assumed that since the language used "shall" then they may request that the report be faxed. SENATOR LEMAN clarified that the language states, "shall mail a copy to the licensee" and "to the complainant if requested." CHAIRMAN RIEGER understood; Senator Leman was referring to faxing it to the licensee. PAT O'BRIEN continued with section 17 of the sectional analysis. She pointed out that they added suspension of operations due to imminent danger which seems to be more constitutionally appropriate. The array of enforcement actions are listed in SB 268 in order to elevate them from the department's licensing manual. SENATOR LEMAN asked if there was any time limit or guideline set for the department regarding the suspension of admissions on page 17, line 18. PAT O'BRIEN preferred not to set a time limit due to their involvement with the police who do not have control over the time needed. PAT O'BRIEN pointed out that if the Assisted Living bill does not pass then the department retains the authority to continue licensing adult facilities; pages 19 and 20 will not go into effect if the Assisted Living bill passes. There are effective dates that cover those. SENATOR LEMAN explained that his amendment on page 19, line 4 would delete "facility" which would broaden that section to include the administrator of the agency. PAT O'BRIEN felt that it was an oversight of the drafter. Number 480 SENATOR LEMAN moved to delete "facility" on page 19, line 4. Hearing no objection, it was adopted. CHAIRMAN RIEGER said that the language page 18, line 24-26 seemed awfully severe; he inquired as to the reasoning behind the language. PAT O'BRIEN said that it may be referring to something as serious as murder or sexual abuse. Ms. O'Brien explained that during the hearing process the possibility of rehabilitation is reviewed and a recommendation is given to the department. The recommendation determines the time period for reapplication depending upon the issues. Ms. O'Brien said that if it is something very serious it would be permanent. CHAIRMAN RIEGER posed a situation where a facility's license is revoked due to a fire. Since such a situation would not be due to a specified oversight then this person would not be able to apply for a license again. SENATOR MILLER did not think that the last sentence on page 18, lines 24-26 was necessary. The first sentence gives the ability to permanently revoke a license. CHAIRMAN RIEGER moved to delete "If a time period is not set by the department, the revocation or nonrenewal is permanent, and the former licensee may not again apply for licensure under this chapter." Hearing no objection, it was adopted. SENATOR LEMAN moved his amendment. AMENDMENT Page 14, line 28: Delete "indictment or charging" Insert after "knowledge of an", "indictment, charging, or conviction" Hearing no objection, it was adopted. SENATOR LEMAN moved his amendment regarding criminal convictions. AMENDMENT Page 19, lines 7 and 8: Delete "or a sex crime as defined in AS 12.62.035;" Insert a new subsection to read: "(3) That a facility administrator, foster parent, member of the licensee's household, regular volunteer, or staff person has ever had a criminal conviction of a sex crime as defined in AS 12.62.035." Hearing no objection, it was adopted. SENATOR LEMAN moved to delete "why" on page 10, line 31 unless this is required by drafting. Hearing no objections, it was adopted. CHAIRMAN RIEGER moved to insert "; (5) a person who does the arranging on an incidental basis and without compensation." after line 25 on page 7. This insertion would mean that an individual could not arrange a child's placement for money and if it is not for money the individual could not present himself as someone who does this routinely. Hearing no objection, it was adopted. Number 394 CHAIRMAN RIEGER moved that after "continuing basis" on page 22, line 6 insert "of 45 days or more." PAT O'BRIEN did not want to allow the 90 day exemption and allow someone to operate 45 days without a license. She explained that currently a facility could operate for 90 days without a license due to the 90 day exclusion in the regulations which would allow teenagers to stay the summer with someone. That is already addressed in the listed exemptions for children nine years of age. She felt that if there was intent to continue care past 45 days there would be a need for a license. CHAIRMAN RIEGER suggested inserting "intended to be on a continuing basis of 45 days or more." PAT O'BRIEN thought that would work. SENATOR LEMAN recommended that the amended amendment be sent to the bill drafter with the intent in order to thoroughly cover this. CHAIRMAN RIEGER moved a conceptual amendment to be reviewed by the drafter and revised if necessary. The conceptual amendment would insert "intended to be on a continuing basis of 45 days or more" on page 22, line 6, after "care." PAT O'BRIEN informed the committee that most of the foster care placements are for less than 45 days. There is a requirement that if the department is going to pay for the placement then a license is required. She noted that the committee was concerned about the private placements. SENATOR SHARP did not know if that would fall under the definition of a foster home. CHAIRMAN RIEGER agreed that the definition of a foster home was broad. Chairman Rieger suggested the following amendment. AMENDMENT Page 22, line 5, after "household" Insert "(a)" Page 22, line 7, after "parents" Insert "or (b) provides 24-hour care on a continuing basis to one or more children who are apart from their parents for compensation from the department;" Hearing no objections, it was adopted. Number 316 PAT O'BRIEN continued with her sectional analysis regarding immunity from liability. She pointed out that private agencies have strongly supported this section which clarifies if they are carrying out a state responsibility. She stated that definitions reflect current practice; however, there are some minor changes. She noted the 18 month implementation period which will be a tremendous job. CHAIRMAN RIEGER asked if SB 268 is supported by the department and the child care community. PAT O'BRIEN indicated that both the department and the child care community want SB 268. SENATOR MILLER moved SB 268 (HES) as amended out of committee with individual recommendations and accompanying fiscal notes. Hearing no objections, it was so ordered. CHAIRMAN RIEGER informed the committee that he intended to bring up another health care bill next week in order to move it along in case SB 367 needs to be divided.
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