Legislature(1995 - 1996)
01/23/1996 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE January 23, 1996 3:00 p.m. MEMBERS PRESENT Representative Cynthia Toohey, Co-Chair Representative Con Bunde, Co-Chair Representative Gary Davis Representative Norman Rokeberg Representative Caren Robinson Representative Tom Brice Representative Al Vezey MEMBERS ABSENT None COMMITTEE CALENDAR HOUSE BILL NO. 30 "An Act relating to a dress code for public schools." - HEARD AND HELD * HOUSE BILL NO. 339 "An Act relating to the termination of parental rights of incarcerated parents." - HEARD AND HELD HOUSE BILL NO. 60 "An Act relating to impairment rating guides used in evaluation of certain workers' compensation claims." - HEARD AND HELD PREVIOUS ACTION BILL: HB 30 SHORT TITLE: SCHOOL DRESS CODES SPONSOR(S): REPRESENTATIVE(S) B.DAVIS,Rokeberg JRN-DATE JRN-PG ACTION 01/06/95 28 (H) PREFILE RELEASED 01/16/95 28 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 28 (H) STA, HES 02/09/95 (H) STA AT 08:00 AM CAPITOL 102 02/09/95 (H) MINUTE(STA) 02/14/95 (H) STA AT 08:00 AM CAPITOL 519 02/14/95 (H) MINUTE(STA) 02/21/95 (H) STA AT 08:00 AM CAPITOL 102 02/21/95 (H) MINUTE(STA) 02/23/95 463 (H) STA RPT 1DP 1DNP 3NR 02/23/95 463 (H) DP: ROBINSON 02/23/95 463 (H) DNP: OGAN 02/23/95 463 (H) NR: JAMES, PORTER, WILLIS 02/23/95 463 (H) ZERO FISCAL NOTE (DOE) 02/23/95 463 (H) REFERRED TO HES 02/23/95 (H) STA AT 08:00 AM CAPITOL 102 02/23/95 (H) MINUTE(STA) 03/01/95 550 (H) COSPONSOR(S): ROKEBERG 01/23/96 (H) HES AT 03:00 PM CAPITOL 106 BILL: HB 339 SHORT TITLE: TERMINATE PARENTAL RIGHTS OF PRISONERS SPONSOR(S): REPRESENTATIVE(S) ROKEBERG,Mulder JRN-DATE JRN-PG ACTION 05/08/95 1976 (H) READ THE FIRST TIME - REFERRAL(S) 05/08/95 1976 (H) HES, STATE AFFAIRS, JUDICIARY 01/23/96 (H) HES AT 03:00 PM CAPITOL 106 BILL: HB 60 SHORT TITLE: IMPAIRMENT RATING GUIDES FOR WORKERS COMP SPONSOR(S): REPRESENTATIVE(S) B.DAVIS JRN-PAGE JRN-PG ACTION 01/06/95 36 (H) PREFILE RELEASED 01/16/95 36 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 36 (H) L&C, HES, FIN 03/22/95 (H) L&C AT 03:00 PM CAPITOL 17 03/22/95 (H) MINUTE(L&C) 03/24/95 888 (H) L&C RPT 4DP 3NR 03/24/95 888 (H) DP: ROKEBERG,ELTON,KUBINA,PORTER 03/24/95 889 (H) NR: KOTT, MASEK, SANDERS 03/24/95 889 (H) 2 ZERO FISCAL NOTES (LABOR, ADM) 03/24/95 889 (H) REFERRED TO HES 01/23/96 (H) HES AT 03:00 PM CAPITOL 106 WITNESS REGISTER JONATHAN SPERBER, Legislative Aide to Representative Bettye Davis Alaska State Legislature Capitol Building, Room 430 Juneau, Alaska 99801-1182 Telephone: (907) 465-3875 POSITION STATEMENT: Gave sponsor statement for HB 30 and HB 60 REPRESENTATIVE BETTYE DAVIS Alaska State Legislature Capitol Building, Room 430 Juneau, Alaska 99801-1182 Telephone: (907) 465-3875 POSITION STATEMENT: Sponsor of HB 30 NANCY BUELL, Director Teacher and Learning Support Department of Education 801 West 10th Street, Suite 200 Juneau, Alaska 99801-1894 Telephone: (907) 465-8689 POSITION STATEMENT: Testified on HB 30 NICLOLE LUCK, Student Lathrop High School P.O. Box 72766 Fairbanks, Alaska 99707 Telephone: (907) 452-1171 POSITION STATEMENT: Testified in support of HB 30 PEGGY THOMAS 9208 Long Run Drive Juneau, Alaska 99801 Telephone: (907) 465-3608 POSITION STATEMENT: Testified in support of HB 339 JAN RUTHERDALE, Assistant Attorney General Human Services Section Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified on HB 339 TOBY STEINBERGER, Assistant Attorney General Governmental Affairs Section Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Answered questions on HB 60 GEOFF BULLOCK, Lobbyist Alaska State Medical Association 201 North Franklin Street, No. 2 Juneau, Alaska 99801 Telephone: (907) 586-5860 POSITION STATEMENT: Testified in support of HB 60 GARREY PESKA, Lobbyist Alaska State Hospital & Nursing Home Association P.O. Box 240185 Douglas, Alaska 99824 Telephone: (907) 364-2244 POSITION STATEMENT: Testified in support of HB 60 PAUL GROSSI, Director Division of Workers' Compensation Department of Labor P.O. Box 25512 Juneau, Alaska 99802-5512 Telephone: (907) 465-2790 POSITION STATEMENT: Testified in support of HB 60 ACTION NARRATIVE TAPE 96-3, SIDE A Number 001 The House Health, Education and Social Services Standing Committee was called to order by Co-Chair Toohey. Members present at the call to order were Representatives Toohey, Bunde, and Rokeberg. A quorum was not present. Co-Chair Toohey announced the calendar for today's meeting was HB 339, Terminate Parental Rights of Prisoners; HB 30, Dress Code for Public Schools; and HB 60, Impairment Rating Guides For Workers' Compensation. Co-Chair Toohey said the meeting was being teleconferenced. CO-CHAIR TOOHEY noted that Representatives Brice and Gary Davis joined the meeting at 3:02 p.m. A quorum was present to conduct business. HB 30 - SCHOOL DRESS CODES Number 140 CO-CHAIR TOOHEY asked Jonathan Sperber to come forward to testify and noted that Representative Bettye Davis, Sponsor of HB 30, was on teleconference. Number 189 JONATHAN SPERBER, Legislative Aide to Representative Betty Davis, read brief introductory statements from Representative Davis' sponsor statement and other materials regarding House Bill 30, which would provide for a dress code for public school students. He said it had been noted that the adoption of a optional school- wide uniform policy is a reasonable and economical way to provide protection for students without taking teachers away from their normal duties. This legislation would also put parents in position to choose the type of clothing they think is most suitable for their child and their child's school environment. This legislation grows out from the belief that we live in an increasingly more violent society and any steps that a school district can take to protect its students deserves careful consideration by the legislature. He emphasized the dress code would be completely optional under this legislation; no student would be forced to comply. The dress code policy would not be implemented without less than a six month notice to allow students sufficient time to purchase uniforms. MR. SPERBER noted that Representative Davis had stated in constituent correspondence that as a legislator, she has had the opportunity to travel widely throughout the United States. She was appalled at the violence that is spreading out from blighted urban centers, and she believes that any steps a school district can take to protect its students should be seriously considered. Mr. Sperber referred to an article from an issue of last month's Sacramento newspaper in which U.S. Attorney General, Janet Reno, spoke very positively of the Long Beach School District having recently adopted a uniform policy. The article further stated shortly after the policy was adopted, fighting dropped by more than half from the previous year, suspensions went down 32 percent, while crime and fighting generally were down 36 percent. Attorney General Reno said she was convinced that uniforms can make a big difference. He next referred to a letter from the Office of the Superintendent of the Long Beach School District which stated that in evaluating these programs, "the district found that use of school uniforms enhanced school safety, improved the learning environment, reduced ethnic and racial tensions, bridged socioeconomic differences between children, promoted good behavior, improved children's self-respect and self-esteem, and produced cost savings for participating families. Schools with greater compliance levels tended to enjoy commensurately better results." The Long Beach School District recommended, as Representative Davis has with this legislation, that each school develop incentives and positive enforcement measures to encourage full compliance with uniform policy, should it be adopted by a school district. In conclusion, Mr. Sperber said Lawrence Wiget, Governmental Liaison for the Anchorage School District, was scheduled to testify but had anticipated that HB 30 would be the second bill heard by the committee. If at the conclusion of public testimony for HB 30, Mr. Wiget had not yet arrived, Mr. Sperber requested that he be allowed to read into the record a paragraph from Mr. Wiget's position statement. CO-CHAIR TOOHEY noted that Representative Robinson arrived at 3:04 p.m. Number 478 CO-CHAIR BUNDE said he was not in any disagreement with Representative Davis' attempt. He thought how people dressed had a direct impact on their behavior. He referred to the voluntary compliance provision and said he thought the committee should hear from school administrators and school children and encouraged the sponsor to get some feedback from the people affected by this bill. Representative Bunde said when he thinks of uniforms, he envisions the entire school dressing the same, for the purpose of removing gang tagging and violence, ego involvement in fashions, etc. He asked if his understanding was correct that under this legislation some children may be wearing uniforms and some children may not. Number 572 REPRESENTATIVE BETTYE DAVIS, Sponsor, testified via teleconference. She stated this was not the first hearing on this legislation and there had been previous testimony from school children. She also noted that in the past students coming to Juneau from the Close-Up program had reviewed this legislation. She added this is the second committee of referral, not the first. REPRESENTATIVE B. DAVIS emphasized the word voluntary and said that school districts are not mandated. She pointed out we are not passing legislation that would say that every school district has to adopt a dress code. It would be left up to the district to decide if they wanted to adopt it as a blanket school district policy or if they wanted to allow each school to make that decision. Representative B. Davis noted we are moving now toward site-based management where the decision would be left up to the principal, students and parents to decide what the code of dress would be for that particular school. So if the school decided to adopt it, then every student that went to that school would have certain colors they would wear. Based on her experience from places she has visited, it also helps develop a great sense of pride in the school. Representative Davis' sister works at a school that adopted this policy last year, and it is highly praised by both the teachers and parents. It has cut down on the amount of money parents have to spend on clothes, and it reduced the competition for designer clothes, etc. The students wear uniforms three days a week which could be pants, skirts, dresses, but they have only certain colors that can to be worn; the next day the students wear their school colors; and the following day, which was always Friday, they are allowed to dress down in whatever they choose. She said that is just an example of how one district has implemented the dress code. Number 730 REPRESENTATIVE GARY DAVIS said currently some school districts don't require students to attend the school in their attendance area. He asked if there were any studies available that indicated if a school district gained or lost students when a dress code was adopted. REPRESENTATIVE B. DAVIS responded she has never seen any information regarding that, but her feeling is that the effect would not be that great for the school district or the school, itself. Number 810 CO-CHAIR BUNDE said he was familiar with the San Diego school system as he had talked with them when he had a bill regarding school violence. He noted San Diego solved their problem by getting rid of lockers and backpacks. He questioned whether Alaska was at the point where dress codes needed to be addressed or were we trying to get ahead of the problem and solve it before it got here. He asked Representative Bettye Davis if she had a recommendation as far as it being K-12 or K-6, with more options available at the high school level. REPRESENTATIVE B. DAVIS said she thought it might be more appropriate for K-6; however, there was nothing in this legislation that would prohibit a high school from adopting a dress code if they chose to do so. In reference to Co-Chair Bunde's comment regarding whether or not Alaska was getting ahead of the violence and related activities going on in their school districts, she commented that several years ago they were trying to determine if gangs existed in the Anchorage area. At that time everyone thought gangs were not present in Alaska, but as everyone is aware there are lots of gangs in the city now. She said everything that is done is for the protection of the children and she didn't think it was too early to start. She commented there is already at least one site-based school in the Anchorage School District and some of the school districts are moving in that direction where there will be a lot more decisions made not only by the school superintendents, but also the principals, parents and students of the individual schools. Number 938 CO-CHAIR TOOHEY commented that as a child she attended school in uniforms all the time, and didn't find them offensive at all, because there was no other choice. She asked Representative B. Davis if there was anything in the law or regulations that prohibits this from being done now. REPRESENTATIVE B. DAVIS responded there probably isn't anything that would keep a school from doing so except the school board, because they do have some autonomy and they can set a lot of things up. She felt this was a good way to show they, as state representatives, are interested in the schools and do care about what kind of education our children get. CO-CHAIR BUNDE noted that Mr. Wiget had not yet arrived and asked Mr. Sperber if he wished to read the statement from Mr. Wiget. CO-CHAIR TOOHEY said she had just spoken with Mr. Wiget and the Anchorage School District has absolutely no problem with this legislation. Number 1031 NANCY BUELL, Director, Teacher and Learning Support, Department of Education, said she wanted to address the aspect of prohibiting certain articles of clothing, and added the Department of Education is generally supportive of the legislation. Ms. Buell commented the Executive Director of the Secondary Principals' Association had recently indicated to her that he had received the department- mandated student rights and responsibilities documents and according to his observation it does include dress code. It generally speaks to prohibited items of dress. Anything to strengthen that would be welcomed and would be helping promote the safety of children. She said many of the problems do break out over slogans on T-shirts, caps, jackets, and other things worn by students that are associated with social persuasions, points of view or gangs. CO-CHAIR TOOHEY verified there is nothing in current law that says we can't do this. MS. BUELL responded there is nothing in law that states we can't do this. She added there probably isn't anything in the law that specifically says we can mandate uniforms, but that would be a matter of board policy. She agreed with previous statements that there is plenty of research which indicated that it does tend to promote a more harmonious climate of less violence. CO-CHAIR BUNDE asked Ms. Buell to address the First Amendment problems and/or religious freedom problems as they related to the prohibited items. He noted that while it isn't a large issue in Alaska, there are sects that choose to have their children dressed in a certain way. MS. BUELL said there had been some research of legal issues on this issue. They have not arisen over dress primarily, but over hair length, sideburns and beards, which along with arm bands, tend to be associated with freedom of speech. The courts have given a lot of support to administrators and teachers, especially in the last decade, for trying to do whatever they can to make the atmosphere more safe. Even limiting dress has generally been supported. She was not aware of any case, where it hadn't been supported. Religious dress is highly supported among young people, although not necessarily so for teachers. Dress codes for teachers is a whole different issue. Number 1213 REPRESENTATIVE CAREN ROBINSON asked if there was anything that needed to be put into this legislation to allow for site specific, where a school could make the determination. Or, would it have to be from the school board who would set a policy and then each school would determine whether or not they wanted to do it. REPRESENTATIVE B. DAVIS said when schools go into what is referred to site-based management, the management of the school (indisc.) down to the principal, the council, the board and the decisions are made at that level, so the overall school board would not be making that mandate; it would be left up to the schools. She said there wouldn't have to be anything in the bill to specify that a site- based management school could do it on their own, because they already have the privilege to do so. Number 1270 REPRESENTATIVE TOM BRICE said his concerns regarding the bill revolved around First Amendment issues, like Representative Bunde brought up. He noted, however, that the bill does allow the parents to exclude their children from the dress code. It also ensures that school districts implement some type of policy whereby a parent could, if for religious reasons, have their children dressed how they wanted. CO-CHAIR TOOHEY said she didn't see any need for this bill. This is already being done at the school district level. REPRESENTATIVE B. DAVIS agreed, but said the reason she introduced the legislation was because of her concern and involvement. She felt the legislature should be doing everything they could to show their support for the issue and there may be some schools who haven't done it even though they have the authority. This could be a motivating factor for some of them to actually do it. She does not feel this is wasted legislation. REPRESENTATIVE G. DAVIS said Representative Bettye Davis had just indicated that a single site school would have the authority to impose a dress code, yet the first words of the legislation state "a governing body may adopt".... REPRESENTATIVE B. DAVIS said it would be a governing body. When the school board passes business down to site-based, then a governing body exists. The governing body is made up of the principal and the council they choose, (indisc.) sit on the council would be equivalent to a school board and they decide how their money will be spent, etc. REPRESENTATIVE BRICE said he agreed with Representative B. Davis. CO-CHAIR TOOHEY said she would like to finish the teleconference testimony and then the committee could wrap up their discussion on the bill. She asked Niclole Luck to testify. Number 1444 NICLOLE LUCK, Student, testified in support of HB 30. She said while Alaska may not be as problematic as Long Beach or some of the other larger cities, she agreed a dress code is something that should be advocated if it helps avoid or defray the problems and could help to keep students safer. REPRESENTATIVE G. DAVIS asked Ms. Luck if she had seen any indication in her school district that a dress code had been discussed in the last couple of years. MS. LUCK responded there are certain things. For example, supposedly students can't wear bandannas, but it is not enforced at all. At least she has never seen any enforcement of it. REPRESENTATIVE BRICE asked Ms. Luck what high school she attended and what brought her down to testify on this legislation. MS. LUCK replied Lathrop High and they are tracking bills in their government class. REPRESENTATIVE BRICE encouraged Ms. Luck to contact his office if there was any information she needed. CO-CHAIR BUNDE said he shared Co-Chair Toohey's concern that this bill was not necessary, other than to perhaps provide an armor for the school boards in that he felt the school boards would take a lot of heat if they proposed the legislation. Personally, he would like to hear from more students and parents in his district before he moved forward on the legislation. REPRESENTATIVE BRICE said he appreciated the bill and thought it did two things. He felt it created the public debate on the issue at the state level to increase the awareness within the public about the pros and cons of a dress code. Also, he thought it clarified the statutes as to whether or not it is allowed. The statutes are not absolutely clear one way or another as to which way a school district can go. By putting the law on the books, he thought some of the murky waters on the issue would be clarified. While school districts may be able to implement a dress code, it is not clear how they would fare in court if they were challenged on the legality of whether or not school districts had the power. He pointed out this legislation would give the school districts that power and would start the public debate. CO-CHAIR TOOHEY thanked Representative Davis for her comments and said it was not her intention to move the bill out of committee today. HB 339 - TERMINATE PARENTAL RIGHTS OF PRISONERS Number 1693 CO-CHAIR TOOHEY asked Representative Rokeberg to give his sponsor statement on HB 339. REPRESENTATIVE ROKEBERG said because of the technical nature of this bill, he would read his sponsor statement to clarify the issue and make sure committee members had read the statement. He stated this particular bill is an act relating to the termination of parental rights of incarcerated parents. HB 339 gives the courts the authority to consider incarceration in child custody cases dealing with termination of parental rights. Currently, the courts do not have the statutory authority to do this. HB 339 will allow the courts to look at a parent's imprisonment, whether the length of the prison term will include a significant portion of the child's minority, and to consider whether or not the parent has failed to make adequate provisions for the care of the child during the prison term. Now if a parent is in prison for 10 or 15 years and parental rights have not been terminated, the child can linger in a foster home for years without any sense of permanency and belonging. This legislation will let the courts look at the effect on the relationship when a parent is in prison and ultimately, give them a tool to make custody decisions for children. Number 1766 REPRESENTATIVE ROKEBERG continued that in order to terminate parental rights, the courts have the burden of proof of showing that the youth is a Child in Need of Aid (CINA) as a result of parental conduct, and that conduct is likely to continue to exist. Alaska Statute 47.10.010 says that the court may order the state to assume custody of a minor who is found to be a child in need of aid as a result of the child having no parent, guardian, custodian, or relative willing to provide care, including physical abandonment. The courts said in the A.M. v. State of Alaska case that "the destruction must be brought about by the acts of the parent, and in order to constitute abandonment, the acts of the parent must be willful." Representative Rokeberg pointed out that being sent to prison does not, by itself, qualify as willful abandonment, which is a key point. Number 1804 REPRESENTATIVE ROKEBERG stated the courts have explicitly asked the legislature to amend the statutes to cover situations where parents are in prison. The first time was in 1991 in Nada A. v. State. Last year, Alaska State Supreme Court Justice Compton again reiterated his request for legislative relief in A.M. v. State of Alaska. Representative Rokeberg urged committee members to look at this legislation and give it consideration. Number 1820 REPRESENTATIVE ROKEBERG referred to the last sentence on page 29 of the first excerpt from court opinions contained in committee member packets which states, "In Nada A., I urged the Alaska Legislature to define more clearly the effect of incarceration on parental rights. I do so again." He then directed committee members to the highlighted areas on page 442 of the Pacific Reporter, 2d Series, where Justice Compton is quoted as saying, "I urge the legislature to amend AS 47.10.080(c)(3) so that parental rights may be terminated when a parent destroys the parent-child relationship by willfully committing a crime and failing to make adequate provisions for the care of the child during a period of incarceration." He pointed out the two letters of support contained in the bill packet. Number 1928 PEGGY THOMAS testified she had been a foster parent for 12 years and presently has the children referred to in A.M. v. State of Alaska in her custody. They have been in her custody for five years. She said that Mark and Samantha first came to her attention in July 1990 when their father needed to serve two week-ends in jail and he requested the state of Alaska to take custody of them while he was serving his time because he had no relatives to care for them and their mother was unable to do so. They first became her foster children in 1990 for the two week-ends. In September 1990, the state assumed care of them again when their father was arrested for sexual abuse of a minor and theft in the second degree. It was at this time that Mark and Samantha came into her care full time. The father was subsequently sentenced to ten years of incarceration with one year suspended, for a total of nine years to serve. She explained that means five years in jail and he will be out of jail on May 14. She said that Mark and Samantha came to live with her in February 1991 when Samantha was 18-months old and Mark had just turned 4 years old. Mark began calling her mom about that time because he obviously needed someone in his life to fill that role. She commented the children often have phone contact with their birth mother, who currently lives out of state. There is a court order by their father for the children to contact him weekly. She explained that is done because he is serving his time in Palmer, so every Saturday morning the children have telephone contact with their father. MS. THOMAS pointed out that Mark and Samantha have grown up in her home and she is the only mother that Samantha knows. She does, however, know she has another mother and she knows her father. The mother has relinquished her parental rights and has no problem with Ms. Thomas adopting the children. On the other hand, the father wants his children back when he gets out of jail. The father had entered into the sex offender treatment program at Hiland Mountain, but dropped out because it was too difficult for him. So he is an untreated sex offender. Ms. Thomas said she wished this legislation was in effect at this time so the judge could make a decision that the father is incarcerated, his behavior has not changed and most likely will not change. He has had a history since he was a juvenile and it seems likely that it will continue. The children have become part of her family. Mark feels a loyalty to his father and really doesn't know where he fits in to the pattern. It affects him the most because he is the oldest and remembers being with his mom and dad. Samantha, on the other hand, is more stable because she has grown up in the Thomas home for five years, which is the majority of her life. MS. THOMAS informed the committee they still do not have a decision from Judge Carpeneti as to the termination of the father's parental rights. She said at this time she doesn't know if the children will be living with her nor do the children know if they will be sent back to live with their father. She felt the Division of Family & Youth Services would not allow that to happen, but they don't know at this time. She emphasized the children want permanency and have both started using Thomas as their last name on their own. Number 2117 REPRESENTATIVE ROBINSON said that because of the sexual abuse, the Division of Family & Youth Services would intervene, so even when the father gets out of jail, the children will still be in limbo. MS. THOMAS agreed that it will continue on for awhile, because they are not going to give the children back right away. REPRESENTATIVE ROKEBERG thanked Ms. Thomas for her testimony and acknowledged her difficult situation. Number 2150 JAN RUTHERDALE, Assistant Attorney General, Human Services Section, Department of Law, testified that her duties were to represent social workers, Child in Need of Aid cases, and sometimes termination cases. She was the attorney that represented the A.M. v. State of Alaska case, which went to the Supreme Court in 1995. She said this is an excellent example, and hopefully the worst example, of how complicated a case can get when you are working with this legal fiction that because the person is in jail, and since that's an involuntary act, we have to sort of pretend they are not in jail and look at conduct other than the conduct leading up to what got them into jail or the conduct they had in caring for their children before they got to jail. She said the court constantly focuses on what a person's parental conduct is, which is a good thing to focus on because you should always look at how a person's conduct can affect their ability to raise their child. She said it seemed to her in this case, and she argued this at the Supreme Court level, that the conduct in committing the act itself that lead to the incarceration, which obviously was voluntarily, was in itself a conscious disregard of a parental obligation. If there is a likelihood of a person committing a very serious crime, for example, sexual abuse of a minor, and gets caught it will result in incarceration for a lengthy period of time. That means an absent father or mother in that child's life. She stated in this case they were not able to argue that this man had five years or more to spend in jail, which was a very significant portion and a very important part of these young children's lives. MS. RUTHERDALE pointed out this case has become very complicated. She said the trial was in the fall 1992, the court didn't rule on it until August 1993. It was argued before the Supreme Court in March 1994, and even though the rules say that it is expedited in children's cases, a decision was not issued until February 1995 which was almost a year later. It was remanded - they didn't lose. The Supreme Court said the court needed to re-look at it. The remand hearing was in May 1995, and the court has still not ruled. She commented there is a hearing on Friday, January 26, to deal with a very minor issue. Once that issue is dealt with, the case can go various ways from there. She said there is no question that whatever way the court rules, it will be appealed again. If the state loses, they will appeal; if the father loses, he will appeal. No one has any idea how long it will take after that and in the meantime, these children are getting older and need some permanency in their life. Number 2293 MS. RUTHERDALE said this legislation is a very important step toward freeing children for adoption. She expressed concern with two different areas of the bill. She referred to subsection 1, line 9, "(1) parent is incarcerated as the result of a voluntary act committed by the parent;" and reiterated that a person can never be incarcerated for a crime without it being a voluntary act. A person could be in jail on a 24-hour intoxication hold, but that would not result in someone seeking to terminate parental rights on that basis. She commented she knew this was put in the bill because the court says going to jail is an involuntary act, and we have to look at voluntary conduct. She said the concern is that perhaps it would muddy the issue. TAPE 96-3, SIDE B Number 004 MS. RUTHERDALE added that since all people in jail, having been convicted of a criminal act, by nature it has to be a voluntary act, it may not make a difference one way or another. She referred to subsection (2), "period of incarceration imposed includes a significant portion of the child's minority;" and said the thought behind that is for example, if the father of a 15-year-old goes to jail for two years, it is not that big of a deal because the child knows who his/her father is, the attachments have been formed and it would probably do more harm to have the parental rights terminated than for the child to wait those two years out in state custody, if need be. On the other hand, in Samantha's case where she was 18-months-old when she first went into state custody, five years is a lifetime for a child. It is so important for the children to have that permanency. The basic thought is that it is sort of a sliding scale: as they are younger, a less period of time is more significant; as they are older, a greater period of time could be tolerated. Last week someone in Ms. Rutherdale's office who deals with legislation, pointed out it is possible that a court could read that a different way to say that if a child is two- years-old and he/she has 16 years before reaching majority, a for year period of incarceration is a small part of that 16 years. She pointed out it could almost be read that the older the child is, the more significant it becomes because it is a greater proportion of the amount of time left in the child's minority. Number 085 CO-CHAIR TOOHEY asked if Ms. Rutherdale thought that any judge in his right mind would return a child to a single parent who doesn't have a job, and is a convicted, untreated sex offender. MS. RUTHERDALE said she didn't think any judge would do that, but it doesn't solve the whole problem of foster care. CO-CHAIR TOOHEY commented that the bill would be going to the Judiciary Committee next and suggested that Ms. Rutherdale explore the various possibilities with that committee. MS. RUTHERDALE said she was certainly willing to work with the committee and she thought a lot of it was policy call. CO-CHAIR BUNDE asked how many cases in Alaska would fall under the purview of this statute. MS. RUTHERDALE responded in terms of termination of parental rights, it is a very drastic measure and isn't done that frequently. She noted that while she did not have statistics available for Anchorage, she thought with the larger population in Anchorage it was probably much more common there. Her colleagues in Anchorage have indicated they would like to have the bill changed because they have run into the problem. She added that it could be perhaps five to ten cases in the last ten years, somewhere in that range. Number 171 REPRESENTATIVE VEZEY said he agreed with Ms. Rutherdale's colleagues regarding the language in subsection (2) and thought Ms. Rutherdale's testimony conflicted with the way he read it. MS. RUTHERDALE commented that is the problem. REPRESENTATIVE VEZEY said he would read it that a child who was 15 years of age and only had three more years to majority, two years would be a significant portion of that child's minority. He asked what kind of incarceration would not be as a result of a voluntary act. MS. RUTHERDALE said that is just the point. She added a person can be jailed if found drunk on the street and there's no room at the alcohol facility, or an unruly person who needs to be incarcerated to be protected from others. In those situations, it would be 24 hours of incarceration at the most. In response to Representative Vezey's question, she said there really isn't any. REPRESENTATIVE VEZEY said subparagraph (3) seemed to conflict with some of the testimony that was given. MS. RUTHERDALE said the law states that if there is a relative who is willing and able to care for the child, then the child is not a child in need of aid. She said she could envision a situation where the child was placed with the mother, and the parental rights in that situation obviously could not be terminated. Or there could be a situation where the mother is out of the picture, and the child is placed with the grandmother. That would be okay under the current law. The problem of foster care drift is not present if the child is with a private arrangement. The state is not involved and foster care is not involved. On the other hand, with foster care, there will always be foster care parents who can't deal with a situation, and then the child has to be transferred. Number 269 REPRESENTATIVE VEZEY said that doesn't address the problem she mentioned earlier of the sex offender who had not undergone sex offender treatment. He thought subparagraph (3) would be a loophole around that. MS. RUTHERDALE responded that was true, it would be. She added but if the parent went to reclaim that child from the grandmother, the state could step in at that point and place the child back with the grandmother. REPRESENTATIVE VEZEY asked what kind of conduct was referred to on line 6. He assumed it was an act relating to the incarceration. MS. RUTHERDALE explained there is another section already in existence; that being (c)(3) which states that you have to find that a child is a child in need of aid as a result of parental conduct, and the courts are saying for purposes of parental conduct, they can meet that finding if they find these things. It can be looked at one way as sort of an exception to that general rule that you have to find parental conduct. The legislature is saying the court can find parental conduct if these three provisions are satisfied. She said, "Another way to look at it I suppose is that parental conduct is the act, the voluntary act in subparagraph (1), the voluntary act that results in incarceration is the conduct." That is what the Supreme Court has said. She said they are not going to read that into the statute. If that is what is meant, it will have to be spelled out. REPRESENTATIVE VEZEY asked if the proposed bill says that the parent's criminal conduct is likely to continue if parental rights are not terminated. He commented that didn't make any sense to him. MS. RUTHERDALE agreed and said she thought it was to prove that the conduct that got the person into jail in the first place is likely to continue. You would have to show the person is not rehabilitated. For example, if a sex offender in jail is not going through sex offender treatment, the prospects of rehabilitation are really poor, so his conduct is likely to continue. REPRESENTATIVE BRICE referred to subparagraph (3) "parent has failed to make adequate provisions for care of the child during the period of incarceration" and noted that Ms. Rutherdale had said adequate provisions for child care is a family member. He asked if that implicitly says foster care is inadequate. MS. RUTHERDALE said no, but the foster care implies state action whereas subparagraph (3) implies private action. REPRESENTATIVE BRICE asked how. MS. RUTHERDALE replied because the parent on their own is making adequate provisions. She said she may be reading something in to it, but to call the Division of Family & Youth Services and ask them to get your child is not an adequate provision. She thought it should be clarified more that the parent has failed to make adequate provisions, which would include guardianship with a person who is suitable to care for the child. CO-CHAIR BUNDE said he understood the past program of the state has been to return a child to their natural parents at all costs, even if it costs the child. He referred to Co-Chair Toohey's earlier example and said he disagreed in that he thought the courts have put children back in the custody of untreated sex offenders. He limited his previous statement to say that the past state program has been to return children to their natural parents as much as possible. MS. RUTHERDALE said that was right. CO-CHAIR BUNDE inquired with regard to foster care if there wasn't a state limitation that only allows a person to care for a child for so long, it was not to be considered an adoption, and not to even try to adopt. He asked if that was still a program. MS. RUTHERDALE said in the case of Ms. Thomas, she was strictly a foster parent in the beginning, but as time went on and the decision to terminate parental rights was made, she was looked to as a permanent placement. So, it can change. She said foster parents may be told not to get attached to these children. But psychologically, Ms. Thomas has to protect herself for that awful day that may happen when she has to give them up. CO-CHAIR BUNDE said he was asking if the laws have changed. He noted that he and his wife had been foster parents in the past and they were told it was temporary care and not to get attached. MS. RUTHERDALE commented it was difficult for the children, as well. Initially, the courts try to reunify the children with their parents, but hopefully not at all costs. If that is not going to work, then permanency is looked at and if termination and adoption is an option, then that is pursued. Number 569 REPRESENTATIVE ROBINSON commented she had a couple of cases in mind that she wanted to make sure the individuals would testify at the next hearing because it clearly has happened. She said quite often what happens is that if the mother is still in the picture, people wouldn't even be looking to intervene. She illustrated a situation where the father would get out of jail, the mother and father would get back together again or the father becomes part of that life, and there may be another assault, another victim, and the father goes back to jail again. She commented this was kind of a unique situation as there are actually two protective parents who are trying to protect the child, although the mother had made the determination to relinquish her parental rights. She said she is aware of another foster care situation where the mother made a determination to give up her parental rights, the father was in jail for sexually assaulting the children, got out of jail and got custody of the children again. Number 599 REPRESENTATIVE ROKEBERG thanked Ms. Rutherdale for her testimony and said he had an amendment that corrected Section 1, and he would be happy to work with her as the bill proceeds. He noted that Ms. Thomas has an imminent date of May 14 and asked if passage of this legislation would be helpful to her in her situation. MS. RUTHERDALE said she thought it was unfortunately too late for her. REPRESENTATIVE ROKEBERG referred to the letter from Kathleen Weeks in which she stated, "I have seen too many parents that desperately wanted to adopt a child when the child was prevented from being adopted by the potential future parenting of a birth parent in jail for a long term sentence." He asked Ms. Rutherdale if she was aware of circumstances where the potential of an adoption existed, but the law is a barrier or an obstacle for that type of activity to take place. MS. RUTHERDALE asked if he was referring to a potential adoption. REPRESENTATIVE ROKEBERG responded affirmatively. MS. RUTHERDALE said yes, that was right. REPRESENTATIVE ROKEBERG said it was difficult to get good statistics on how many people this really affected, because people are cut off from even pursuing adoptions. MS. RUTHERDALE said that was true and added she only works with public adoptions and of course, there are a lot of private adoptions, too. REPRESENTATIVE ROBINSON referred to the issue of adequate provision of care and commented there could be a situation where the only option available to a parent would be to go to the state and ask them for child care while the parent goes to jail. To her that would be adequate care. She thought that section really needed to be clarified. CO-CHAIR TOOHEY said she would return this bill to the sponsor for additional work with Ms. Rutherdale. The bill could be brought before the committee again. Co-Chair Toohey turned the gavel over to Co-Chair Bunde for HB 60. HB 60 - IMPAIRMENT RATING GUIDES FOR WORKERS COMP Number 740 CO-CHAIR BUNDE said HB 60 was sponsored by Representative Bettye Davis and asked Jonathan Sperber to present the bill. JONATHAN SPERBER, Legislative Aide to Representative Bettye Davis, said that House Bill 60 would provide that the Department of Labor use the most recently published edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, including the most recent supplementary materials in making impairment rating determinations. He said this legislation is supported by the medical community, the Department of Labor and more specifically, the Workers' Compensation office. Mr. Sperber referenced the Department of Labor's position paper available in committee packets, which stated in part, "Allowing the use of the current edition of the publication in effect at the time of the impairment rating will reduce the need for Board hearings and ensure that those applicants who meet current requirements will qualify for benefits. The older version of the AMA guides do not include some injury types and do not reflect current thinking on degrees of injury given new medical technology and prognosis for recovery." He directed the committee's attention to a letter in their packet from Dr. Roy Schwarz who stated the AMA's position was clearly stated on page 5 of the Guides 4th edition published in June 1993. That position being "The American Medical Association strongly discourages the use of any but the most recent edition of the Guides, because the information in it would not be based on the most recent and up-to-date material." Dr. Schwarz went on to say in his letter that the position of the AMA quoted above reflects advice that the AMA's staff provided in May 1992 to the staff of each state medical society. Also, it is AMA's practice to sell or provide only the most recent Guides edition. MR. SPERBER read the following statement from Representative B. Davis' sponsor statement: "There have been significant changes in diagnostic and evaluation procedures over the six years. One of the most important, that the Alaska Guide does not address is how the injury affects the patient's daily activity." He noted that Alaska regulations currently specify that the 1988 AMA guidelines were to be used, although there has been a subsequent edition published. Number 910 CO-CHAIR TOOHEY inquired as to the cost of the Guides, including the supplemental, and how often it is published. MR. SPERBER said each new edition costs approximately $75. The Division of Workers' Compensation requires three copies of the latest edition. The last two editions published were the 3rd in 1988 and the 4th edition in 1993. He wasn't sure how much time elapsed between the 1st and 2nd editions, and the 2nd and 3rd editions, but noted there was at least a five year period between the publication of the 3rd and 4th editions. Mr. Sperber said he would defer the question regarding the cost of supplementary materials to the representative from the Department of Labor. CO-CHAIR BUNDE commented there were individuals in Anchorage waiting to testify via teleconference. Number 978 TOBY STEINBERGER, Assistant Attorney General, Governmental Affairs Section, Department of Law, said at the request of Paul Grossi, Director, Worker's Compensation Division, she was available to answer questions. CO-CHAIR BUNDE said the regulations require the use of an outdated version of the AMA Guide, but apparently there is a need for a statutory change in order to use the current one. He asked Ms. Steinberger if this legislation should reflect the ability to update without having to come back for statutory changes. Number 1010 MS. STEINBERGER responded it is the Department of Law's position that under the current version of the statute when the new edition is enforced or used, public notice has to be given. She commented she is currently reviewing a proposed regulation which has already been publicly noticed, adopting the 4th edition, 1994. After her review, the proposed regulation will be sent to Deborah Behr, Assistant Attorney General in the Legislation & Regulations Section of the Department of Law. This proposed bill may eliminate the need to adopt a new regulation each time there is a new edition of the Guide. CO-CHAIR BUNDE said as he understood it, what was being requested in the legislation could actually be accomplished now by statute, but they were looking for a more efficient process. MS. STEINBERGER said she thought the department, through Representative B. Davis, was asking for the more efficient process, but reiterated they are currently reviewing a proposed regulation to adopt the 1994 edition. CO-CHAIR TOOHEY referred to the supplementary materials and asked if the supplemental was updated every year and if they were made available to the medical community and the public. She expressed concern with a regulation like this being implemented and asked if the hands of the Workers' Compensation Division would be tied if we were not able to get the published edition of the 1994 edition or the 1995 edition or the supplemental material. MS. STEINBERGER responded the proposed regulations adopt the 1994 edition and she is not familiar with the supplementary materials. Number 1129 MR. SPERBER said it was his understanding in terms of the regulatory process, that under the current Department of Law drafting procedures, a regulation could not be promulgated that would have similar type wording as HB 60, but rather the far slower and more cumbersome process would have to be followed. He said in this case, about eight or nine months had now elapsed since the request was placed with the Department of Labor to draft a regulation which required use of the now current 4th edition of the guidelines. He thought that Co-Chair Bunde was technically correct in that a regulation could address what is being addressed by HB 60, however, doing so by regulation would be a far slower, more awkward, inefficient process. CO-CHAIR BUNDE commented it is somewhat frightening to think that regulations take longer than statutory changes. Number 1203 GEOFF BULLOCK, Lobbyist, Alaska State Medical Association, testified the Alaska State Medical Association supports this legislation. The association would like to see the updated verbiage used in the statutes rather than through the regulation process, in order to make it clearer. He noted he had just received the copyright dates of the recent editions, which showed there is anywhere from a few years to many years lapse between editions. REPRESENTATIVE ROKEBERG asked for verification of the fact there were representatives of the industry, workmen's compensation insurance businesses, that testified in support of this bill before the House Labor & Commerce last year. He asked Mr. Bullock if that would be a correct statement. MR. BULLOCK responded he had not been at the hearing last year, but noted that doctors at the state level seemed very supportive of it. Number 1273 GARREY PESKA, Lobbyist, Alaska State Hospital & Nursing Home Association, testified the Alaska State Hospital & Nursing Home Association supports this legislation. The association would like to see the most current Guideline be effective, rather than having to go through the cumbersome process of changing regulations every time there is a change in the Guidelines. Number 1309 PAUL GROSSI, Director, Division of Workers' Compensation, Department of Labor, testified the Department of Labor supports this legislation primarily because they view it as a way of streamlining the regulatory process. They think it is a way to get an automatic adoption of the most current AMA Guides. The department is required to do this anyway under the current law because they are required to use the AMA Guides. The problem is it requires a regulatory change every time there is a change in the AMA Guide. While the regulatory process is long and cumbersome, he doesn't know that it takes as long as a statutory change, but the fact is once they have the statutory change, it will be there for the duration. He pointed out the division had proposed regulations to make it the most current Guide, but that process was started last August. Mr. Grossi said he talked with representatives of the AMA Guide last August and they indicated it would probably be another two years before a new Guide would be in effect. Number 1411 REPRESENTATIVE ROBINSON asked Mr. Grossi if he thought "At the time of rating" or similar language should be inserted at the beginning on subsection (b) on line 5. MR. GROSSI said he thought the current language would work fine. He noted they could pass a regulation for an effective date which would provide some lag time after the publishing, so the medical community, insurance community, employers' groups, employees' representatives, and the division could get copies of the most recent edition. There would probably have to be a little bit of lag time to allow that to occur. REPRESENTATIVE ROBINSON verified that Mr. Grossi didn't feel there was a need for that language. She understood there were people who thought this should be added. REPRESENTATIVE B. DAVIS interjected it was her understanding based on the information her staff received from Representative Robinson's office that the request for the language change originated from the Department of Labor. REPRESENTATIVE ROBINSON confirmed that. REPRESENTATIVE B. DAVIS said if the representative from the Department of Labor had stated the language change is not needed, then it is not needed. CO-CHAIR BUNDE asked Mr. Grossi to do some research on the issue and get back to the committee. MR. GROSSI replied the Department of Labor would do that. Number 1524 REPRESENTATIVE VEZEY noted there would be a lag time between the publication of the new edition and the time it would be available in offices in which the department would not be able to effect any work. MR. GROSSI said he wasn't exactly sure how it would be done. One of the possibilities was to pass a regulation which stated that quarterly, by way of a bulletin, the division would publish a bulletin indicating the AMA Guides that would be in use during that quarter. He reiterated this was just one possibility. It would be simple in that it would require passing just one regulation and that regulation could be used until the law changed. REPRESENTATIVE VEZEY differed with Mr. Grossi in that a regulation that conflicts with statute is not enforceable. He commented he wasn't sure how to define "most recent published edition" and that it may not be considered effective until you can reasonably receive a copy of that edition. He emphasized there would be some lag time involved. MR. GROSSI said he agreed it would be difficult. If there was a rating that was occurring in a doctor's office on the day the new Guide was being published, there was no way they could possibly be using the most recent published edition. He said there would have to be a way to put it in effect and thought it would be relatively simple to just have a three month lag time. REPRESENTATIVE VEZEY said an automatic way of handling it would be to work with the material you have and if the effective date of the new material was after your termination, an adjustment could be made. CO-CHAIR BUNDE said he would like Mr. Grossi to address this lag time issue before the next hearing on the bill. CO-CHAIR TOOHEY questioned whether the difference would be that great. She said it didn't seem likely that technology was suddenly going to develop something in a certain area that would totally eliminate a person from workers' compensation. MR. GROSSI interjected it was the most current science at a given time and added that usually the changes are not dramatic. There may be new research that comes out, but it was usually incremental changes. CO-CHAIR BUNDE commented on the zero fiscal note and asked if we start using the new manual and it addresses how these definitions would affect a person's normal life, is that likely to introduce a large number of new clients into workers' compensation. MR. GROSSI said it wouldn't change the number of clients in workers' compensation. It would depend on the number of injuries that occur. If there was a permanent partial impairment that was ratable, then any given injured worker was entitled to a permanent partial impairment rating. CO-CHAIR BUNDE directed Mr. Grossi's attention to the sponsor statement which states the new guide would now address how the injury affects a patient's daily activity. He asked if Mr. Grossi didn't anticipate that would significantly increase the number of people on workers' compensation. MR. GROSSi said he didn't see how it could. The number of people on workers' comp is dependent on the number of injuries that occur. CO-CHAIR BUNDE clarified that it would be defining the injury differently. In other words, it wasn't defined as a workers' comp injury prior to the new definition, but now it was. MR. GROSSI didn't think it would have an effect. He said, "The only possibility would be if there is some new science that came out that would allow for a type of rating system that formerly they didn't have the knowledge to do that, then that could possibly happen." CO-CHAIR BUNDE asked Mr. Grossi to address this issue at the next hearing. MR. GROSSI said someone from the medical community would need to address that. Number 1844 REPRESENTATIVE ROKEBERG said he wanted to clarify the effect of the lag time. As he understood it, a physician would make a judgment on the rating and depending on which edition that physician is using, it could have an impact on the judgment of whether there was coverage or not. MR. GROSSI said it would depend. They would have to use a version of the AMA Guide and the rating would have to occur according to those guidelines. REPRESENTATIVE ROKEBERG said one could be out-of-date because of the mail, and that is why it was important for the timing to be precise. It could have an affect on a judgment which would result in a dispute over whether there was coverage or not based on the rating. MR. GROSSI said it was important that it be established and thought it could be done either through statute or regulation. it was possible to have a regulation that would allow for some period of lag time. He said it would need to be done that way to ensure that the ratings would be done systematically. REPRESENTATIVE ROKEBERG asked if Mr. Grossi wouldn't prefer to have a specific statutory date certain, to avoid having to publish a regulation. MR. GROSSI responded the department would be happy if they didn't have to adopt a regulation on this. CO-CHAIR BUNDE closed the meeting to public testimony. He reiterated the policy of the House HESS Committee to not pass bills out of committee on first hearing. REPRESENTATIVE ROBINSON reminded committee members the language had been changed from workmens' comp to workers' comp. CO-CHAIR BUNDE said this bill will be held in committee for an additional hearing. CO-CHAIR BUNDE announced the Joint House/Senate HESS hearing on Wednesday, January 24 at 9:00 a.m. in the Butrovich Room for a briefing on the Comprehensive High Risk Insurance Pool. There would not be a meeting of the House HESS Committee on Thursday, January 25. ADJOURNMENT CO-CHAIR BUNDE adjourned the meeting of the House HESS Committee at 4:26 p.m.