Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/21/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB86 | |
| SB17 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 86 | TELECONFERENCED | |
| + | SB 17 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 86-PROTECTION OF VULNERABLE ADULTS/MINORS
1:31:27 PM
CHAIR FRENCH announced the consideration of SB 86 relating to
the protection of vulnerable adults and minors.
1:32:08 PM
DUANE MAYES, Director, Division of Senior and Disabilities
Services (DSDS), Department of Health and Social Services
(DHSS), said SB 86 will strengthen Alaska laws and address the
growing problem of financial exploitation of the elderly and
other vulnerable people. He noted that the Department of Labor
and Workforce Development estimates that Alaska's 50,000 seniors
will likely number 80,000 by 2017.
SB 86 has two components. First is a temporary conservatorship
procedure that will work much the same as the temporary
guardianship procedure that is already in statute. The
vulnerable victim will retain autonomy while receiving
assistance. Second is the ex parte relief from fraud procedure,
which is similar to existing domestic violence protection law.
This will allow vulnerable adults to independently obtain
straightforward, expedited relief from a magistrate or judge.
This bill will amend the adult protective services statutes to
enhance DHSS's investigatory authority and expand the list of
mandatory reporters to include employees of nursing homes. It
will add the concept of undue influence when a person of trust
uses their role to exploit and gain control over a vulnerable
adult, and it will enhance penalties in criminal cases where
there is abuse of an elderly victim.
1:37:57 PM
KELLY HENRIKSEN, Assistant Attorney General, Civil Division,
Human Services Section, Department of Law (DOL), said she
represents the Department of Health and Social Services. In this
role she does guardianships and conservatorships in Southeast
Alaska when Adult Protective Services brings a petition.
CHAIR FRENCH asked her to explain the basic difference between a
guardianship and a conservatorship.
MS. HENRIKSEN explained that a guardianship is basically what a
parent would be for a child. They do things to protect the well-
being and welfare of a person in terms of health care,
transportation, and appointments, although it can include
finances. A conservator is strictly financial and deals with
assets and property. She agreed with Senator French that the
guardianship covers a broader panoply of needs than the
conservatorship.
MS. HENRIKSEN said the bill has three main parts. The first has
the provisions that deal with temporary conservatorship and
financial protective orders. The second part includes new
criminal provisions when somebody violates a financial
protective order. The third part clarifies and augments Adult
Protective Services powers in Title 47. Basically, the phrase
"undue influence" has been added in all the different places in
Title 47 where "vulnerable adult" is described to clarify that
this is another way that a person can be made vulnerable.
1:40:33 PM
MS. HENRIKSEN provided the following sectional analysis:
Section 1 makes a knowing violation of a financial protective
order a crime.
Section 2 amends the definition of protective orders in AS
11.56.740 to include financial protective orders. These are
criminal provisions.
Section 3 makes the fact that a defendant would knowingly direct
criminal conduct at a person age 65 or older an aggravating
factor at sentencing.
Section 4 adds being a victim of fraud as a basis for appointing
a conservator by amending AS 13.26.165(2)(a). Two standards must
be met for a conservator to be appointed. First, there has to be
some reason why a person is being exploited. Second, a person
has to be in danger of having some of their property wasted or
dissipated. Being a victim of fraud doesn't mean that a person
necessarily suffers from some mental or physical deficiency.
CHAIR FRENCH asked if Section 4 is describing a court process by
which a conservator is appointed.
MS. HENRIKSEN agreed that this section sets out the standard
that needs to be met in order to have a conservator appointed by
the court.
CHAIR FRENCH reviewed the reasons that a court would appoint a
conservator starting on page 2 and opined that adding "fraud" as
a reason seems unusual because there is no showing that the
person is in any way disabled. He asked if the intent is to give
the court the ability to use the power to appoint a conservator
in that circumstance.
MS. HENRIKSEN said yes; there are more and more cases of
individuals, usually older individuals, who don't have a mental
or physical deficiency, but somebody is tricking them or
cheating them or using undue influence. These people are in
effect perpetrating a fraud and the victim doesn't realize that
it's happening. The Office of Public Advocacy suggested this
addition and APS is fully supportive.
CHAIR FRENCH asked if the person being defrauded would be
present at the hearing.
MS. HENRIKSEN answered that would typically be the case unless
there is a physical reason for not attending.
CHAIR FRENCH asked if it would be dispositive if the person said
he or she did not want the conservatorship.
MS. HENRIKSEN replied the court oftentimes will have colloquy
with the respondent to gauge whether the person really
understands.
1:46:03 PM
SENATOR PASKVAN asked if these cases are typically one-on-one or
if a class of elderly is targeted.
MS. HENRIKSEN replied it's typically one-on-one and more often
than not it's a family member who is perpetrating the fraud or
exerting undue influence. She cited examples of fraudulent calls
from Jamaica, supposedly from family members.
SENATOR PASKVAN asked if Alaska's criminal laws segregate this
type of fraudulent activity.
MS. HENRIKSEN said she didn't know other than what this bill
adds. Both the FBI and the police were alerted in the Jamaica
fraud and neither could do anything.
SENATOR COGHILL asked if proceedings to appoint a conservator
could commence based solely on adding fraud to section .165.
MS. HENRIKSEN said that's correct.
1:48:33 PM
Section 5 adds attorneys, caregivers, and the Department of
Health and Social Services (DHSS) as entities who may petition
for conservatorship for an individual.
Section 6 creates a procedure for requesting the appointment of
a temporary conservator just like the guardianship statutes.
This would be used when a petition for a regular conservator was
pending.
Section 7 adds two new statutes to deal with a temporary
conservator. The first provides the statutory basis for
temporary conservators to protect the victims of fraud and
financial abuse and to ensure that funds are obtained to meet
the needs of the respondent and their dependents.
1:49:55 PM
CHAIR FRENCH asked if Section 4 deals with a temporary
conservatorship or a regular, permanent conservatorship.
MS. HENRIKSEN replied it's about either one.
CHAIR FRENCH asked if there's a definition for "temporary."
MS. HENRIKSEN explained that this tracks the guardianship
language so it will last until a permanent conservator is
appointed or the petition in dismissed.
SENATOR PASKVAN asked what standard the judge follows under
either the temporary or permanent conservator.
MS. HENRIKSEN said she believes it's the clear and convincing
evidence standard just as it is for guardianships, but she would
find out.
SENATOR COGHILL asked who is present at the 72 hour hearing.
MS. HENRIKSEN replied the petitioner, the petitioner's
attorneys, the respondent, the respondent's attorney, and if
there's an allegation of incapacity it's possible that a doctor
would attend. Oftentimes family members are there as well. The
notice requirements for a temporary conservator aren't as strict
as those for a regular, permanent conservator.
SENATOR COGHILL said he pays attention to this because he's seen
instances where people weren't included due to oversight or
deliberate action.
MS. HENRIKSEN said her experience has been that the court will
not proceed if it's apparent that the respondent hasn't had a
chance to talk to an attorney.
1:53:07 PM
The second part of Section 7 establishes a process for obtaining
a financial protective order to immediately stop suspected
financial abuse. It is modeled after domestic violence
protective orders. A person may directly petition the court to
obtain a 20-day ex parte protective order. This can be done
without giving notice to the person the petitioner believes is
defrauding or financially harming him or her. The protective
order may be extended up to six months, but this requires both
notice and a hearing. It's a probable cause standard and the
petitioner must show he or she has been defrauded and that there
will be an immediate wasting or dissipation of their assets. In
that sense it tracks the regular conservatorship legal standard
requirements.
CHAIR FRENCH asked if other states use ex parte protective
orders for matters of financial loss and fraud.
MS. HENRIKSEN deferred the question to Mr. Sterling or Ms.
Russo.
1:55:07 PM
ELIZABETH RUSSO, Supervising Attorney, Civil Section, Public
Guardian, Office of Public Advocacy, Department of
Administration (DOA), said she believes that other states have
ex parte protective orders for financial loss and fraud. She
deferred to Mr. Sterling as to which states do this.
CHAIR FRENCH deferred the question until Mr. Sterling testified.
SENATOR COGHILL reviewed the proposed Sec. 13.26.209(a) and
filing a protective order under AS 13.26.180(a) and said he's
trying to figure out the circumstances under which this could be
misused.
CHAIR FRENCH asked if the department could file for an ex parte
order.
MS. HENRIKSEN answered yes.
CHAIR FRENCH added that it could be a police detective or
someone who is aware of fraud being perpetrated in the
community.
MS. HENRIKSEN agreed.
SENATOR COGHILL reiterated that he was trying to figure out how
this could be misused.
CHAIR FRENCH said it will be brought into sharper relief in
later sections.
1:57:16 PM
MS. HENRIKSEN continued the sectional analysis.
Section 8 adds a definition of fraud to the conservatorship
statutes. It's the same definition that's in the Office of Elder
Fraud and Assistance statutes.
Section 9 excludes the crime of violating a financial protective
order from the crimes that are subject to warrantless arrest.
Sections 10 and 11 add financial protective orders to the
registry of protective orders maintained by the Department of
Public Safety (DPS) and updated by law enforcement officers.
Section 12 adds the concept of undue influence to the list of
reportable harms to a vulnerable adult. It also adds employees
of nursing homes, residential care or health care facilities and
the staff of educational institutions to the list of those who
are mandated reporters.
Section 13 clarifies what information may be contained in a
report of harm to include contact information regarding the
vulnerable adult [and information regarding any undue
influence.]
Section 14 adds "undue influence" to the list of reportable
harms that subject a reporter to a class B misdemeanor if not
reported.
Section 15 adds "undue influence" to the list of reportable
harms and clarifies that a mandatory reporter is not prohibited
from reporting harm in their non-occupational capacity. It also
clarifies that no person is prohibited from making a report of
harm. This language comes from the Office of Children Services
statutes.
Section 16 requires mandated reporters to contact law
enforcement in situations where they believe the vulnerable
adult is at imminent risk of serious physical harm and it is not
possible to contact the department. "Undue influence" is added
to the list of reportable harms. Law enforcement is then
required to contact DHSS within 24 hours of receiving the
report.
2:00:38 PM
SENATOR COGHILL said he understands that a class B misdemeanor
is attached to a mandatory reporter, but he'd like confirmation
there no penalty is attached to the timeliness provision.
MS. HENRIKSEN said she believes that's correct, but she would
follow up.
CHAIR FRENCH said it's interesting because page 9, line 5,
changes the requirement to report from "may" to "shall" and that
implies some sort of consequence.
MS. HENRIKSEN reiterated that she would follow up.
2:01:39 PM
Section 17 adds "undue influence" and "abandonment" to the list
of harms that can be reported regarding a vulnerable adult
residing in an out-of-home care facility. Reporting to the long-
term care ombudsman satisfies the reporting requirement.
Section 18 adds two new subsections. The first states that a
mandatory reporter is not relieved of the obligation to report
to DHSS by reporting to their supervisor or another employee.
The second subsection makes an individual who willfully or
recklessly makes a false report liable for civil damages.
CHAIR FRENCH commented that some of these provisions should have
delayed effective dates to allow time for the department to do
training and get the word out.
SENATOR PASKVAN referenced subsection (j) in Section 18 and
asked if the intent is that there be actual damages as opposed
to nominal damages. He opined that you would want someone who
recklessly files a false report to be liable at least in nominal
damages to the person that needs protection.
MS. HENRIKSEN asked if that's a suggestion.
SENATOR PASKVAN replied he was trying to figure out if anybody
through about that. Now a person gets away with it if they
recklessly file a false report and no actual damages are
suffered.
MS. HENRIKSEN said she didn't recall a discussion on that point,
but she'd be happy to discuss it further.
SENATOR COGHILL pointed out inconsistencies between subsection
(i) in Section 18 and subsection (b) in Section 13, both dealing
with Title 47. On the one hand the reporter is held highly
accountable and on the other they're given anonymity under
subsection (b).
MS. HENRIKSEN said she didn't recall any discussions about that
inconsistency when the bill was drafted about two years ago, but
she would follow up with an answer.
2:05:20 PM
MS. HENRIKSEN continued the sectional analysis.
Section 19 adds "undue influence" to the list of reportable
harms to the section regarding adults who are not in an out-of-
home care facility.
Section 20 adds "undue influence" to the list of reportable
harms DHSS is required to investigate when there is an
individual who is under 60 years of age living in an out-of-home
facility. The long-term care ombudsman will deal with people
over age 60 and APS will take on those under age 60.
Section 21 clarifies that the long term care ombudsman must
provide the results of his or her actions or investigations to
the office of the department that handles adult protective
services.
Section 22 adds "undue influence" to the list of reportable
harms included in the reports sent to the department by the long
term care ombudsman. It clarifies that these reports are sent to
the office of the department that handles adult protective
services.
Section 23 adds "undue influence" to the list of reportable
harms the department is required to investigate.
Section 24 adds "undue influence" to the list of reported harms
that applies to an alleged perpetrator when the perpetrator is
the one requesting that APS not investigate further. Someone who
is capacitated may ask APS to stop an investigation and they
have to honor the request, but they don't have to stop if the
person isn't capacitated. Likewise, APS doesn't have to stop an
investigation at a caregiver's request if the caregiver is the
alleged perpetrator of the harm.
CHAIR FRENCH asked who makes the capacity decision.
MS. HENRIKSEN replied initially it would be APS, but that could
be litigated if the case goes to court.
2:07:48 PM
Section 25 adds seven new subsections dealing with the powers of
ASP to investigate reports of harm.
· Subsection (h) requires individuals and entities to provide
the department access to health and financial records of a
vulnerable adult as part of its investigation.
· Subsection (i) prohibits anyone from interfering in an
investigation.
· Subsection (j) allows the department to file an ex parte
order for access to records if necessary if no petition for
guardianship or conservatorship has been filed.
· Subsection (k) allows adult protective services access to
any departmental information necessary to assist in the
case. This language and the idea came from the
certification in the licensing statutes. It's to avoid
problems with getting confidential information from the
different offices and divisions within the department.
· Subsection (l) allows the department to audio or video tape
an interview of a vulnerable adult with their consent and
if they are not incapacitated. If they lack capacity, the
department may not do this.
· Subsection (m) requires the department to provide training
to investigators.
· Subsection (n) defines "financial records" that pertain to
a vulnerable adult but that are held by some sort of
fiduciary.
CHAIR FRENCH asked if filing an ex parte order for access to
records is the same as an application for a subpoena.
MS. HENRIKSEN explained that she took this route because a court
order carries more weight in terms of getting institutions to
honor a request for records. Certainly in the age of HIPAA folks
are slow to give health records and financial institutions are
equally reluctant because of their own rules and regulations.
CHAIR FRENCH asked what happens if the individual or entity
doesn't comply with the "shall" language.
MS. HENRIKSEN explained that she wanted the "shall" language to
show that the request isn't discretionary; she would go to court
to get an order if the request was ignored.
SENATOR PASKVAN asked if there would be a formed document so
that the court's order complies with HIPAA.
MS. HENRIKSEN said she is the HIPAA attorney for the Department
of Law (DOL) and she would be happy to help the court system
develop the forms.
CHAIR FRENCH noted that he read that the intent was to work
toward developing the forms.
MS. HENRIKSEN agreed.
2:12:04 PM
Section 26 adds an attorney-in-fact, trustee, or surrogate for
health care decisions as persons who may serve as a surrogate
decision maker for the purpose of consenting to the receipt of
protective services for a vulnerable adult. This updates
existing statutory language under Title 47. [This section also
deletes the requirement that in order for a spouse to be a
surrogate decision maker, the spouse and vulnerable adult may
not be living in separate domiciles.]
SENATOR COGHILL asked if a surrogate is someone like himself who
acts on his dad's behalf without having power of attorney.
MS. HENRIKSEN said yes; it's someone who is acting for another
person without having signed an official document. A health care
power of attorney includes that same kind of provision where you
can give somebody your health care power of attorney but you can
also appoint somebody to be your surrogate decision maker for
health care decisions.
SENATOR COGHILL asked for confirmation that it's not something
that's generally assumed, for example next of kin.
MS. HENRIKSEN said correct; Title 47 has a list of who may be a
surrogate and this expands that list a little. An APS social
worker is limited to using that list when appointing a
surrogate.
2:15:16 PM
Section 27 adds an allegation of "undue influence" to the
allegations that would disqualify an individual from being
selected as a surrogate decision maker.
Section 28 adds "health care surrogate" to the provision that
requires the department to discontinue protective services if
the vulnerable adult refuses services after he or she regained
the cognitive ability to make his or her own decisions.
Section 29 adds attorney-in-fact, surrogate for health care
decisions, and trustee as individuals who may consent to the
provision of protective services to a vulnerable adult in the
existing provision that requires APS to provide those services
within 10 days. [It also adds "undue influence" to the list of
potential reports of harm.]
Section 30 adds family members, trustees, and conservators to
the list of individuals who may be restrained by a court
injunction from interfering with the provision of protective
services to a vulnerable adult.
Section 31 adds "undue influence" to the types of harm contained
in confidential reports and adds trustee to the list of
individuals who may consent to release a confidential report.
Section 32 clarifies that a person is not considered unduly
influenced if they choose to consent to treatment by spiritual
means only.
Section 33 redefines "abuse" to include the infliction of
emotional distress or fear, including coercion and intimidation.
Section 34 redefines "caregiver" to include someone who is an
employee of a business that provides personal care assistance in
an adult's home.
SENATOR PASKVAN returned to Section 32 to ask if that provision
is for purposes of medical treatment as opposed to financial
loss.
MS. HENRIKSEN said she's always thought of it in terms of
medical care, but she's actually never used the provision in any
of her cases.
SENATOR PASKVAN pointed out that somebody could promise to pray
for you in return for $1,000 and guarantee that you'd be healed.
MS. HENRIKSEN said that is something they'd want to target and
she didn't know why that couldn't be included within this
provision.
SENATOR COGHILL said when he read it he was thinking about
health issues but if it could be financial issues he needs to
know.
2:19:02 PM
CHAIR FRENCH set the issue aside to puzzle over until the next
hearing.
MS. HENRIKSEN said she'd give it further thought.
2:19:23 PM
Section 35 defines "informed decision" as a decision made free
from undue influence.
Section 36 redefines "exploitation" to include acts by a person
in a position of trust with a vulnerable adult who obtains
profit or advantage through undue influence, deception,
intimidation or breach of fiduciary duty with or without their
consent.
Section 37 redefines neglect to include the willful or reckless
failure by a caregiver to provide access to services or to carry
out a treatment plan necessary to the health of a recipient.
"Reckless" is new language and "essential care services" is
defined as food, clothing, shelter, medical care, and
supervision.
Section 38 expands the definition of protective services to
include services that obtain basic health care needs, financial
assistance services, and protection from abuse, obtaining basic
food, shelter and clothing, among others. Undue influence is
added to the list of types of harm that these services are
intended to alleviate.
Section 39 amends the definition of "unable to consent" by
adding the concept of "undue influence" and that the inability
to consent includes a person's inability to perceive a loss of
income or assets, eviction, and physical or mental harm.
Section 40 amends the definition of a vulnerable adult by more
clearly defining what constitutes a physical or mental
impairment.
Section 41 adds definitions for the following terms:
· Deception
· Fiduciary duty
· Financial institution
· Person who stands in a position of trust or confidence
· Undue influence
Sections 42 through 47 deal with changes to the uncodified law.
2:22:04 PM
SENATOR COGHILL expressed interest in a further discussion on
the definition of "undue influence."
CHAIR FRENCH posed a hypothetical situation where one family
member counsels another to go to Mexico to get scientifically
questionable laetrile treatments and asked whether that would
fall under this definition of "undue influence." While that
family dynamic may not be widely embraced and could be total
scientific quackery, he has questions about suddenly giving the
department the power to intercede.
MS. HENRIKSEN said it reads broadly, but in practice it's very
narrow. She welcomed suggestions to make the definition more
precise and targeted and assured the committee that Adult
Protective Services wouldn't step in unless there was actual
harm and she wouldn't take a case to court if it didn't pass the
legal standard.
2:25:02 PM
SENATOR COGHILL said his concerns were allayed somewhat when he
realized that the person of trust had to act deceptively.
SENATOR PASKVAN said it's one thing if someone receives no
financial benefit for trying to get a family member to undertake
laetrile treatment, but it's another if the person receives a
kick back. It crosses a line when the person advancing the
argument is in a position to gain.
MS. HENRIKSEN said this simply gives APS the ability to look
into a situation.
SENATOR COGHILL asked if "undue influence" under Title 47
relates to a civil action item.
MS. HENRIKSEN answered yes; this is about APS investigations
under Title 47.
CHAIR FRENCH added that at most this relates to establishing a
conservatorship or getting an ex parte order to establish
separation between the "victim" and the perpetrator.
MS. HENRIKSEN agreed and reiterated that the legislation deals
with Title 13 and Title 47. APS only investigates and a judge
makes it happen. The impetus for the bill is that many cases now
relate to one family member using their trust and inherent
authority to take control of finances and sometimes decision
making of another family member. These changes give the
department another chance to look at the situation and if need
be get an emergency stop on the draining of the finances.
2:28:34 PM
SCOTT STERLING, Supervising Attorney, Elder Fraud and
Assistance, Office of Public Advocacy (OPA), Department of
Administration (DOA) said his expertise is on the sections
dealing with temporary conservatorships and the ex parte
emergency financial orders.
CHAIR FRENCH asked how his office and APS are related.
MR. STERLING explained that OPA and APS are in different
departments, but they have a memorandum of agreement and
cooperate closely. OPA also works closely with the Office of the
Long Term Care Ombudsman. The mission of OPA is to investigate
claims regarding the financial exploitation of Alaskans age 60
and older, and to seek civil remedies on behalf of elders unable
to bring a complaint without assistance. Another part of their
authorizing statute has them provide assistance to agencies and
people that are concerned for elder well being in the financial
area.
CHAIR FRENCH asked if OPA supports SB 86.
MR. STERLING answered absolutely; this legislation will place
Alaska ahead of many other states even though it already has
well-run and active adult protective service. The measures in SB
86 attempt to target the fact that technology is outpacing law
enforcement's ability to protect people. Scamsters use
computerized programs, mass data research, and census data;
their technology is on par with what is available to law
enforcement agencies. Currently a scam lottery is targeting zip
codes in Alaska combined with census information about income
above a certain level. This bill will help law enforcement and
civil agencies combat these scams, he stated.
SENATOR PASKVAN asked if there's a readily available list of
attorneys that work in this area of law.
MR. STERLING replied there is an elder law section of the Alaska
Bar and it maintains a list on the lawyer referral service. OPA
attorneys are members.
SENATOR COGHILL asked if this bill will help with policing or
just the defense.
MR. STERLING replied he believes it will help with prevention as
well as cure. The ex parte procedures have helped to address
domestic violence and this will probably do the same. These
crimes operate in the shadows and are underreported so they're
difficult to track, but a 2009 study by the MetLife Foundation
indicated that financial exploitation is the single largest
cause of elder abuse. This will help.
2:36:06 PM
SENATOR WIELECHOWSKI joined the committee.
SENATOR PASKVAN mentioned the Burnie Madoff scam and commented
that scammers are hitting the population hard.
MR. STERLING responded nominally legal activity goes on that
conceals exploitation.
2:38:11 PM
CHAIR FRENCH closed public testimony and announced he would hold
SB 86 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 17 Sponsor Statement version A.pdf |
SJUD 2/21/2011 1:30:00 PM |
SB 17 |
| SB 17 US DeptofJustice DEA News Release.pdf |
SJUD 2/21/2011 1:30:00 PM |
SB 17 |
| SB 17 NCSL Pending Legislation on Synthetic Cannabinoids by State as of 01.18.2011.pdf |
SJUD 2/21/2011 1:30:00 PM |
SB 17 |
| SB 17 NCSL Synthetic Cannabinoid State Laws as of 01.18.2011.pdf |
SJUD 2/21/2011 1:30:00 PM |
SB 17 |
| SB 17 Support Letter APOA AACP WPA.pdf |
SJUD 2/21/2011 1:30:00 PM |
SB 17 |