Legislature(1997 - 1998)
03/24/1998 03:07 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 March 24, 1998 3:07 p.m. MEMBERS PRESENT Representative Con Bunde, Chairman Representative Joe Green, Vice Chairman Representative Brian Porter Representative Fred Dyson Representative J. Allen Kemplen Representative Tom Brice MEMBERS ABSENT Representative Al Vezey COMMITTEE CALENDAR HOUSE BILL NO. 375 "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HB 375 SHORT TITLE: CRIMES AGAINST CHILDREN/FOSTER CARE SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 2/02/98 2200 (H) READ THE FIRST TIME - REFERRAL(S) 2/02/98 2201 (H) HES, JUDICIARY, FINANCE 2/02/98 2201 (H) INDETERMINATE FN (GOV/VARIOUS DEPTS) 2/02/98 2201 (H) GOVERNOR'S TRANSMITTAL LETTER 2/26/98 (H) HES AT 3:00 PM CAPITOL 106 2/26/98 (H) MINUTE(HES) 3/03/98 (H) HES AT 3:00 PM CAPITOL 106 3/03/98 (H) MINUTE(HES) 3/05/98 (H) HES AT 3:00 PM CAPITOL 106 3/05/98 (H) MINUTE(HES) 3/12/98 (H) HES AT 3:00 PM CAPITOL 106 3/12/98 (H) MINUTE(HES) 3/20/98 (H) HES AT 3:00 PM CAPITOL 106 3/20/98 (H) MINUTE(HES) 3/24/98 (H) HES AT 3:00 PM CAPITOL 106 WITNESS REGISTER KAREN PERDUE, Commissioner Department of Health & Social Services P.O. Box 110601 Juneau, Alaska 99811-0601 Telephone: (907) 465-3030 POSITION STATEMENT: Testified on HB 375 via teleconference. LISA TORKELSON, Legislative Assistant to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801-1182 Telephone: (907) 465-3467 POSITION STATEMENT: Testified on proposed committee substitute for HB 375. SUSAN WIBKER, Assistant Attorney General Human Services Section Civil Division Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Testified on proposed committee substitute for HB 375. SUSAN COX, Chief, Assistant Attorney General Civil Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified on proposed committee substitute for HB 375. ACTION NARRATIVE TAPE 98-32, SIDE A Number 0007 CHAIRMAN CON BUNDE called the House Health, Education and Social Services Standing Committee meeting to order at 3:07 p.m. Members present at the call to order were Representatives Bunde, Porter, Dyson and Kemplen. Representatives Green and Brice arrived at 3:13 p.m. and 3:14 p.m., respectively. Representative Vezey was absent. HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE Number 0020 CHAIRMAN BUNDE announced the first item on the agenda was HB 375. The meeting was teleconferenced for listen only and Commissioner Perdue was available to testify offnet. Chairman Bunde said, "As you've heard, we've had some heated testimony on this bill and I want to, I guess, establish why at least in my mind we are working in this arena and to also establish how this bill will work toward accomplishing what I think we all acknowledge are some problems in the child protection system." He asked Commissioner Perdue to bring the committee up to date on the present status of child protection. He asked if he was correct that statutorily, the Department of Health & Social Services, through the Division of Family and Youth Services (DFYS) is required to investigate all reports of harm. Number 0224 KAREN PERDUE, Commissioner, Department of Health & Social Services, testifying offnet, said Chairman Bunde was correct, the statute states each report of harm shall be investigated. CHAIRMAN BUNDE commented the realities, however, are the department is at the point of not being able to obey the law. COMMISSIONER PERDUE affirmed that. She pointed out that over the course of the years, the department has done what is referred to as "workload adjusting" which prioritizes the calls as they come in. Over time it has become more pronounced so now about 3,700 reports of harm are workload adjusted which Commissioner Perdue believes should, under statute, be investigated. CHAIRMAN BUNDE recalled that over the past four or five years, there have been about 5,000 reported cases of harm per year that were not investigated. COMMISSIONER PERDUE stated that figure may be a little overstated. She went on to explain that of those 5,000 reported cases, there's probably about 1,000 - 1,500 for which the department didn't have enough information. So realistically there's probably 3,000 - 4,000 reported cases each year that are not being looked into. Number 0288 CHAIRMAN BUNDE reaffirmed that if a report of harm is received, the department, statutorily, doesn't have the choice to not investigate the report, but in some cases it can't be looked into because of a lack of information. COMMISSIONER PERDUE said that was correct; for example, sometimes a caller isn't specific enough with the name, address or whereabouts of the child. Number 0319 CHAIRMAN BUNDE concluded that in the last five years there have been approximately 15,000 - 20,000 reports of harm that have not been investigated. COMMISSIONER PERDUE thought that was a fair assumption. CHAIRMAN BUNDE asked Commissioner Perdue to explain how this legislation will reduce the number of reports of harm not being investigated. Number 0370 COMMISSIONER PERDUE replied, "In comparing our system with other systems, we have a very high number of reports of child abuse in our state per capita and many people believe it's because we let some cases go where they're multiple reports of harm before we're able to go and look in on the situation. In child protection systems that are functioning effectively, there's a little bit earlier intervention and over time there should be less crises that come to the attention of the division and children are not as damaged. There's not as much time gone by and I think what this bill would do would put in place clearer laws that would allow for instance, for the state to intervene in cases where there's serious substance abuse or a child is living in a crack house, those kinds of things. Those are areas where we may not be able to intervene right now. So over time what we would have, I think, is a more efficient system." Number 0442 CHAIRMAN BUNDE noted there's an old expression in the legislature, "Bad cases make bad law" and the cases that are brought to legislature's attention are, of course, the worst cases. The other side of that is the people who contact their legislator because they feel they've been treated in an unfair manner. He asked Commissioner Perdue if this legislation would address that situation or do changes need to be made in basic managerial procedures? COMMISSIONER PERDUE said she believes there needs to be more accountability for and more oversight of the system. There are administrative changes in the bill that should lead to that; for example, foster parents having a more formal role as another set of eyes and ears for the child and having the multidisciplinary teams reviewing situations. In other words, sharing the responsibility and oversight will help to ensure there are checks and balances in the system. She said that, by itself, probably isn't enough; administrative reviews need to be in place to make sure that consistent decisions are being made statewide to ensure that children in all parts of the state are being treated under the same standard. Number 0565 CHAIRMAN BUNDE acknowledged the multidisciplinary teams are addressed in this bill. However, constituents working in the child care or medical field have expressed a high level of frustration with the lack of interagency cooperation, some people referring to it as a "turf battle." Chairman Bunde asked Commissioner Perdue what changes the legislature could make that would help promote an interdisciplinary approach. COMMISSIONER PERDUE responded, "Well, I think, just off the top of my head, I don't think that some of these important decisions should be made in isolation by one person. I feel as though some of these decisions are so important that we should, in the very serious cases, have other levels of review - of course, we always have the courts when we remove the child, but in terms of how long we're taking to process a case and so on - I think that having multidisciplinary teams and others involved in decision making is important. You have to balance that against the issue of how quickly the system needs to move because when you get more people involved, it sometimes takes more time. So, you don't want to tie up the system at the emergency point with all kinds of coordination but you need to have regular points along way for somebody who is looking at the system. Not inconsistent with federal changes that happened in November, this bill has a situation where the court is more heavily involved in a more frequent basis in the review time on the cases where the child is in state custody." Number 0706 CHAIRMAN BUNDE said another concern that's come to the committee's attention is that of the lack of training, or sophistication of some of the people who are hired and become social workers in name only. He asked if Commissioner Perdue saw this as an issue that should be and could be addressed and if hiring individuals with a higher level of training would alleviate some of this problem. COMMISSIONER PERDUE replied this is a labor intensive business and the quality of the workforce is directly related to quality of decision making and how much support and training is given to workers. She explained about 90 percent of the workers have a college diploma and about 44 percent have a master's degree or bachelor's degree in social work. She wasn't convinced that an individual needed to be a social worker in order to do this type of work; frankly, some of the best workers are those with a lot of time in the field and may not have the right degree on paper. The common denominator as she sees it, is reducing the turnover thereby reducing the vacancy, which means workers have to be supported which in turn means they have to be trained. She agreed the minimum qualifications should be revised upward, but she didn't want to discount those long time workers who are doing excellent work without having a degree in social work. The department's training efforts have fluctuated over the years but it is currently working to establish a permanent arrangement with the University of Alaska for an ongoing academy much like the Alaska State Troopers using some federal dollars. Number 0858 CHAIRMAN BUNDE commented that while HB 375 doesn't address the issue of training, he's hopeful Commissioner Perdue had indicated the department would be trying to hire more highly qualified people. Obviously, it's less expensive to hire someone who has the education and training than to hire someone who requires all the training. He stressed it's not only important for the public to have confidence in the process, but the Administration must be comfortable the process is working. COMMISSIONER PERDUE added that in terms of frustration, when turnover is high, there's a number of different people working on the same case which translates to interruption in continuity for the families, the children and the foster parents. Therefore, a reduction in turnover and vacancy should result in better efficiencies for the public. She pointed out the department is the best it's been in seven years in terms of vacancies. Number 0949 CHAIRMAN BUNDE noted the legislature has been concerned that funded vacant positions be filled in a timely manner. In an earlier hearing, Chairman Bunde had asked who was the one person responsible when these children "fall through the cracks" or who should be complimented when the system works properly. While HB 375 doesn't address that issue, he had thought Commissioner Perdue had indicated that from a management point of view, there will be people specifically responsible for following a child through the process and reducing the number of workers families have to talk to, reducing the number of times children have to be interviewed and attempting to reduce the opportunities for a child to "fall through the cracks." COMMISSIONER PERDUE recalled that her answer to Chairman Bunde's question was that she has the responsibility as a manager to make improvements to the system and is very committed and serious about that. It's a big job and while there's a lot to do, the department is reducing vacancies, improving training, hoping to have foster parents more actively involved in the process and the long term goal is to intervene more productively with families earlier and not to have children waiting in the system for long periods of time. Number 1045 CHAIRMAN BUNDE stressed that obviously was the goal of the committee as well. He commented this problem has been building and ongoing for a number of years and while no answers or conclusions have been reached, this legislation attempts to work with the department to help solve the problems. If this bill becomes law, the legislature will be following to see that it does, along with some managerial changes, allow the department to meet the statutory requirement to investigate all reports of harm. COMMISSIONER PERDUE wanted to point out that even though this isn't an issue for consideration in this committee, the third part of the equation, beyond accountability and new laws, is there's simply not enough bodies to investigate all reports of harm. She said that issue will be addressed in the budget. CHAIRMAN BUNDE reiterated frustration on the part of the legislature because the department has been slow to fill positions which have been funded. The legislature will be watching with interest to see that the department is able to fill the positions more rapidly. He emphasized it's Commissioner Perdue's responsibility to keep the legislature aware of the challenges facing the department and the problems with the system. It's unfortunate the legislature had to wait this long and that it took tragedies to encourage everyone to move on the issue. In summary, Chairman Bunde said the legislature is committed to working with the department on this piece of legislation and whatever iteration it takes as it moves through the legislative process. Additionally, the legislature, aware there's been problems with the system, will be closely monitoring the system and asks the commissioner to inform the legislature in a timely manner if this doesn't correct the problems. Number 1182 CHAIRMAN BUNDE announced that Representative Dyson had drafted a committee substitute and Representative Brice had an amendment. Number 1234 REPRESENTATIVE FRED DYSON made a motion to adopt proposed committee substitute 0-GH2009\B, Lauterbach, 3/23/98, as a work draft. REPRESENTATIVE TOM BRICE objected for discussion purposes. CHAIRMAN BUNDE asked Representative Brice to speak to his objection. REPRESENTATIVE BRICE said, "Frankly, it is a 56-page committee substitute; the original bill was only 49 - there's 7 or 8 pages of other stuff that I'm just not sure that I want to be on record to support or oppose one way another at this point in time and this was the first day that I've gotten it. Just to get that on record." Number 1279 REPRESENTATIVE BRICE removed his objection after stating his concerns. Number 1299 REPRESENTATIVE DYSON apologized to committee members about the lateness of the proposed committee substitute, but his office had just received the document from Legislative Legal Services. He noted that a number of individuals from the Administration had spent an inordinate amount of hours working on the proposed committee substitute and most of the differences between the proposed committee substitute and the Governor's bill have been agreed upon by the Administration with the exception of the leadership of the multidisciplinary team. CHAIRMAN BUNDE asked Susan Wibker and Lisa Torkelson to come forward to the witness table. Number 1385 LISA TORKELSON, Legislative Assistant to Representative Fred Dyson, Alaska State Legislature, explained the rough summary of changes distributed to committee members had actually been prepared prior to the drafting of the proposed committee substitute and doesn't reflect all the changes. She noted the sexual offender registration sections were removed due to the single subject requirement because it didn't relate to children. CHAIRMAN BUNDE asked Representative Dyson to explain why Section 1 should be codified and remain in statute. REPRESENTATIVE DYSON said the Division of Family and Youth Services has indicated that part of the problem has been a change that was made to the law in 1992 which places the primary emphasis and states the intent to be the preservation of the birth family. The division has argued the result of that change has been an over- emphasis on unification or reunification of the birth family to the point that children have been left in jeopardy or placed in jeopardy and harm. The new intent language in the proposed committee substitute states the primary goal is a safe and permanent home for the child with, of course, the first option being the reunification and support of that home. Number 1542 CHAIRMAN BUNDE recalled a discussion regarding children's rights versus parents' rights. He asked Ms. Wibker if the new Section 1 will address that issue adequately and does it also then reduce some of the tort considerations. SUSAN WIBKER, Assistant Attorney General, Human Services Section, Civil Division, Department of Law, announced that Assistant Attorney General, Susan Cox, who specializes in torts was available to answer questions. She added if that language is in statute, there will need to be parallel language in the immunity section. Number 1594 MS. TORKELSON explained that according to Terri Lauterbach of Legislative Legal Service, Section 1(a) of the E Version was moved to Section 24 of the proposed committee substitute as a new AS 47.05.065. CHAIRMAN BUNDE noted there had been a number of concerns expressed by the public regarding indemnity for DFYS workers over and above that which is inherent with a state employee. He asked Ms. Cox to speak to the rights section and the protection section having to be parallel. Number 1617 SUSAN COX, Chief, Assistant Attorney General, Civil Division, Department of Law, reiterated that the language in Section 1 pertaining to children's rights has been codified in Section 24 as AS 47.05.065, Legislative Findings Relating to Children. She noted the previously identified "rights" in the previous version are now expanded greatly in the new section. She said the department has a concern in creating these rights if there is implied in that a duty or an obligation on the state's part to see to it that all children in the state have a safe and happy childhood, reasonable safety and adequate treatment, permanency with a safe, loving family and the rest of the things listed. She said one way to deal with that is to make it clear these are the goals and this is what the legislature would like to see in an ideal world, while at the same time, stating the legislature is not creating a new duty or standard of care that the state is now the guarantor of every child's happy childhood or is not creating an impossible burden for DFYS and others involved in the process. CHAIRMAN BUNDE surmised that would address the immunity issue. MS. COX interjected, "Well, there are several things you can do and actually I think I should clarify some terms because when you first asked me a question, you referred to indemnity and that isn't the same thing. Immunity actually prevents someone from suing or getting civil damages in a personal injury or negligence action in certain circumstances - however you define the immunity. We've got two issues here, you don't have to reach the question of immunity if you say up-front that we're not going to recognize a civil action -- that these findings aren't creating a duty that give rise to civil lawsuits for damages -- and then you don't have to address the immunity of the people involved. The immunity provision that was in the previous bill has been reworked in this committee substitute - it's in Section 53 and it was before. Basically the first sentence says that the bill did not create a duty or a standard of care and then it goes on -- the other version had a different immunity provision that followed." Number 1787 CHAIRMAN BUNDE asked if Ms. Cox was of the opinion the proposed committee substitute did not require an immunity provision. MS. COX referred to the statement in Section 53, "Nothing in this title [meaning AS 47] creates a duty or standard of care for service to children and their families" and said that is an important statement to make in order to prevent the Findings in Section 24 from creating an overwhelming burden on the state of guaranteeing every child's happiness. She said there is a section in the proposed committee substitute that states, ".... subject to existing discretionary immunity in state law in AS 09.50.250....". Apart from that, the state will be liable for negligent acts or omissions; the negligence would be presumably determined by the court as it would be currently under normal and duty and (indisc.). Number 1834 CHAIRMAN BUNDE surmised this proposed committee substitute creates no more immunity than that which exists for state employees in general. MS. COX replied that Section 53 as written, states the immunity will continue that is currently available under AS 09.50.250 but that there can be liability for negligence. She noted there may be a problem if it is read to repeal other immunity that's not in the statute that's referenced; e.g., judicial immunity, quasi-judicial immunity and other types of immunity that have been recognized by the courts. CHAIRMAN BUNDE asked Ms. Cox to review this issue and report back to the committee at the next meeting. He said it is the goal of the Chair to reduce the need for extraordinary immunity for child care workers. Number 1882 REPRESENTATIVE BRIAN PORTER said, "It's my reading of this that - I wouldn't pass this unless I put immunity for parents in here because we're guaranteeing a right to happiness in a child and it's the parent's responsibility to nurture and ...." Number 1919 MS. COX agreed to work on this issue. She said her only other comment on immunity relates to the local, regional and district child fatality review teams getting the same immunity provided to the state child fatality review team under AS 12.65.140, but the draft has eliminated any immunity to the state team in AS 12.65.140. She stated, "I think if you would consider the policy justifications for providing immunity to those teams, these are people who, after the death of a child, are appointed to look into the cause and the Governor's original bill did provide immunity for their duties in that regard and I think we've got a lot of nonstate employees who could potentially be asked to serve on those teams and if they're not going to be immunized for their jobs, it may be very difficult to find anyone to serve in that capacity." Number 1965 MS. TORKELSON pointed out that Legislative Legal Services has not completed the drafting on the state child fatality review teams. CHAIRMAN BUNDE noted he would hold his questions on the state child fatality review team until the next meeting. He asked if the definition of abandonment in Section 28 of the proposed committee substitute had changed significantly from the previous version. Number 2019 MS. WIBKER noted it was on page 22 of the proposed committee substitute and said it appeared to be different. CHAIRMAN BUNDE recalled the committee passed a bill out of committee the previous week relating to poverty in Child in Need of Aid (CINA) cases. He asked if Representative Dyson was rolling that proviso into Section 28? REPRESENTATIVE DYSON said that had been his intention. MS. TORKELSON said, "Instead of as a part of the CINA portion, it was just taken out and put into its own section 47.10.019 so that this poverty exclusion would take care - like blanket all the CINA proceedings rather than just that one -- I think it was 47.10.011 in the Governor's version -- instead of putting in a little tiny portion of the CINA proceedings, it was put in so it would cover everything." Number 2124 CHAIRMAN BUNDE next referred to Section 34 relating to removing the predator rather than the child from the home and said he assumed that would relate to a two-parent family or some kind of extended family. MS. TORKELSON responded this language was taken from laws of other states; instead of only focusing on removing the child, it looks to determine if it's in the best interest of the child to remove the predator. CHAIRMAN BUNDE asked if this language would create legal problems? MS. WIBKER said from a legal standpoint, it's fine. It's done quite frequently because there's a federal duty to try to prevent removal and one of the ways to prevent the traumatic removal of a child from a safe parent is to keep the child with the nonoffending parent if the other parent is violent. Often, if the nonoffending parent is a protective, good caretaker for the child, the worker will ask the court for a no-contact order that prevents the offending, violent parent from being in contact with the child, the residence or family until certain conditions are met. She said the state has offered amendments specifically addressing this issue, to make it very clear, particularly in cases of domestic violence. Number 2186 CHAIRMAN BUNDE recalled that Ms. Wibker had been asked to give the committee an overview in terms of which sections of the original HB 375 are in response to federal mandates and requested that she provide a similar overview after reviewing the proposed committee substitute. MS. WIBKER explained she had highlighted everything in the original HB 375 that was required by federal law and she would be happy to do the same with the proposed committee substitute. Number 2234 CHAIRMAN BUNDE pointed out the committee would go over the original HB 375 which is the genesis of the proposed committee substitute to determine what is federally mandated versus state generated. Number 2244 MS. WIBKER noted some things are federally required because of a conflict with existing law, while other things are now allowed by the federal government that were not previously allowed; in other words it's permissive. She directed the committee's attention to the first change on page 13, Section 18 of the original bill [0- GH2009.A] and explained that federal law allows the states to use child fatality review teams and to apply for grant money for those teams. However, if the child fatality review teams are created, the statute must contain a provision that the reports can be made public. Number 2290 REPRESENTATIVE PORTER asked if Ms. Wibker was saying that information from a child fatality review team is public? MS. WIBKER responded some of it is public information. Of course, an identifying name cannot be revealed, but the child fatality review team could release an annual public report indicating the team had reviewed 25 deaths of children; causes of death in the state of Alaska among children are such and such; a summarization of findings and data; et cetera. REPRESENTATIVE PORTER interjected the child fatality review team could not present information to the District Attorney for prosecution. MS. WIBKER stressed it could be released; it's a prosecution tool. REPRESENTATIVE PORTER asked how that could be done without revealing the name. MS. WIBKER explained the reason this team exists is to do a cause of death determination, so the troopers and law enforcement will do their investigation .... TAPE 98-32, SIDE B Number 0001 REPRESENTATIVE PORTER said he thought Ms. Wibker had inferred last week that because the complaint was originated from CINA records it had to remain confidential. MS. WIBKER responded the records can be provided to the district attorney; CINA records can't be made public, but the information can be provided to the district attorney for prosecution. REPRESENTATIVE PORTER inquired if there would be a problem with the name becoming public through a trial. MS. WIBKER said it would become public through the trial. If, however, there's no prosecution for example, and the child fatality review team reviews ten deaths and determines those deaths were the result of a virus, the report couldn't release specific names. REPRESENTATIVE PORTER said he had thought it was a bar to prosecution. MS. WIBKER said it's a tool. She explained there are about 100 deaths per year among children in the state and there is suspect 10-12 of those are probably homicides that get written off as natural causes, accidental deaths, et cetera. This provision allows the law enforcement team to have a review to determine if it's really a homicide and if that team, after reviewing everything, decides it's a homicide not an accident, the team will take it to the District Attorney's Office. The idea is to promote prosecution of homicides and not let it slip through the cracks as accidental death. He said this provision complies with the federal requirement in that it does allow the team to make reports public, although their meetings would not be. MS. WIBKER stated the change on page 26, line 12, Section 32, is a federally-mandated change that people caring for children in out- of-home care be given notice of hearings and an opportunity to be heard. CHAIRMAN BUNDE asked if Ms. Wibker was familiar with the foster care review panel legislation that passed last year and if so, would it come into play with this change. MS. WIBKER noted that foster parents can attend reviews as well as hearings. REPRESENTATIVE DYSON interjected that was another issue. CHAIRMAN BUNDE explained the legislation passed basically follows a child through the entire process from the time the child is taken into custody and goes into foster care. It appeared to him that legislation would be the vehicle for providing this review. MS. WIBKER explained this provision allows foster parents to go to court and attend court hearings, as well as reviews. In the past, a foster parent wasn't a party, and a party can attend court. CHAIRMAN BUNDE conceded this is a different situation. Number 0137 MS. WIBKER referred to page 28, lines 14-17, and said federal law requires a permanency hearing in 12 months and every 12 months thereafter. CHAIRMAN BUNDE inquired if this would apply to the situation where a parent involved in substance abuse would have 12 months to get treatment. MS. WIBKER said that was correct. Once the child is removed, a permanency hearing will take place in one year to review what has happened and every year thereafter. This change is federally mandated. She said page 29, lines 11-18, requires the first permanency hearing in 12 months rather than 18 months. MS. WIBKER directed the committee's attention to Section 40 on page 30, beginning at line 17 through the end of the page and said this is a federally mandated change as is page 31 in its entirety with the exception of lines 18-22. The language on lines 18-22 is added by the state and deals with situations where the state would not be required to make reasonable efforts to return a child home. In addition to the situations in federal law, the state added language to include cases whereby a parent has committed the homicide of the other parent of the child, such as the O.J. Simpson case. The language which reads "the parent or guardian is incarcerated and unavailable to care for the child during a significant period of the child's minority considering the child's age and need for care by an adult" was added for two reasons: first, because it's grounds for termination of parental rights under existing state law and secondly, there are many parents who demand all their parental rights while in jail. She explained that it seems ridiculous to require a social worker to take the child to visit an incarcerated parent when that parent isn't going to be available to raise the child. Number 0269 REPRESENTATIVE BRICE noted that O.J. Simpson was found innocent criminally, but charged with wrongful death civilly and asked if that would apply to this situation. MS. WIBKER replied yes. According to the federal attorneys giving technical assistance to the Department of Law, it was their intent to cover civil findings which is by a preponderance. Number 0295 MS. WIBKER next referred to page 32, lines 2-3, and said while the language proposed by federal law is, "the child's health and safety shall be the paramount consideration", the state is allowed to give children more protection, but not less than what is required federally. The state chose to use the term "child's best interests" to allow the court to consider more than just health and safety. MS. WIBKER directed the committee's attention to the Termination of Parental rights and responsibilities on page 32 and said lines 4-30 are state law and line 31 on page 32 and almost all of page 33 are mandated federal changes. She explained federal law now requires the state to file petitions to terminate parental rights in certain situations that are listed on page 33. The exceptions which are state law, not federal law, are found on page 33, lines 11-14. The language on page 34, lines 7-13 is a federally mandated change requiring the state to do concurrent planning which means even if reasonable efforts are made to return the child home, permanent planning should also be done. Number 0459 MS. WIBKER said the change on page 40, lines 25, 26, 27 and one word on line 28 is permissive under federal law. She explained it's an important change for increasing the tenure of foster parents. The remaining language on page 40 is existing state law and is not required change under federal law. Number 0497 MS. WIBKER said the language pertaining to the use of multidisciplinary teams on page 41, Section 52, is also a permissive change. CHAIRMAN BUNDE said he had previously commented on the frustrations expressed by individuals working in other areas of child protection, and he wanted to confirm this language would change the management style so there would be multidisciplinary teams. MS. WIBKER said that was correct. This is supported by the department; it increases team work, it increases exchange of information and so on. CHAIRMAN BUNDE asked if this section was incorporated into the proposed committee substitute. MS. TORKELSON replied it is carried over in a modified form. MS. WIBKER added the entire section on multidisciplinary teams is a permissive change. She explained the statute allows people to share information without violating confidentiality so they can work on teams. She noted that Chairman Bunde had earlier commented that bad cases make bad law; this is a great example of learning from the mistakes in bad cases. She said, "When we go back and try to learn from bad cases, what we learn is often in state agencies - the left hand doesn't know what the right hand is doing and if everybody could share information, you get a much better result." REPRESENTATIVE PORTER thought the law had been changed three or four years ago to allow public agencies to share information with other state agencies. MS. WIBKER said the confidentiality restrictions that allow the state to give more information to law enforcement and the public have been amended several times. REPRESENTATIVE PORTER thought it had been constructed to allow all of the agencies wanting to participate in these teams to be able to do so without any need for additional confidentiality legislation. REPRESENTATIVE JOE GREEN asked if this section was permissive. MS. WIBKER said it's something the federal law allows and there's also grant money available to states for research and the use different models. Number 0644 MS. WIBKER next referred to page 44, Section 58, and said federal law requires states to do criminal background checks, including federal criminal background checks, using fingerprint identification on any placement home to be licensed or paid by the state to care for children. She had worked with the Department of Public Safety in developing a plan to include the federal requirements and the specific requirements are contained in subsection (6) on the bottom of page 44, regarding two sets of fingerprints. CHAIRMAN BUNDE assumed that child care facilities wouldn't have to comply with this since they are not considered foster care. MS. WIBKER said if a child care facility is licensed and gets paid, it must comply. CHAIRMAN BUNDE commented that apparently licensed facilities in Alaska are not included in the required reporting of suspected abuse. MS. WIBKER said child care providers are specified in the mandated reporting statute and must report suspected abuse or neglect. MS. WIBKER continued to explain the state is giving more protection than what's required by proposing that anyone in a licensed home who would be caring for children would be required to go through this process. Also, the state is proposing an amendment that would include the requirement that anyone in the home over the age of 16 be subject to this process so the fingerprints of juveniles who have been waived as adults will be in the system. So if a foster family applying for a license has a child living in the home who has been convicted as an adult in another state, the fingerprint background check will identify that individual. Number 0751 REPRESENTATIVE DYSON said he thought the proposed committee substitute set an age requirement of 12 for this section. MS. WIBKER said, "Let me suggest to you why 12 is not workable right now; it will be. We originally had 12 in our version because right now Public Safety and the FBI are working on developing a national juvenile Alaska Public Safety Information Network (APSIN) where you could run a juvenile through APSIN and get their record nationally, which you can't do right now. That system is not in place yet. Right now if you took fingerprints from a 13 year old, they're not going to match anything because there's no system -- there's nothing to compare them to. And it's expensive to take two sets of fingerprints and have Public Safety ask the FBI to do this - it costs I think right now $59 a set - and you're not going to get a result unless somebody is convicted under the waiver and has been waived into adult court which means they're 16 or older. So, once the juvenile APSIN system is in place, it would be reasonable to come back to this and consider lowering that age, but right now it's just not a practical thing to do." Number 0818 REPRESENTATIVE PORTER noted that wasn't totally correct. A person can be waived into the adult system by a means other than just an automatic waiver; a 13-year-old person can be waived. MS. WIBKER said, "Right. And if they're tried and convicted as an adult, their prints will be in the system and we'll find it, so we put anybody over 16." REPRESENTATIVE PORTER said the fingerprints of a 13-year-old person waived into adult court will be in the system but the prints won't be available if the person is in the system as a juvenile offender. Number 0838 REPRESENTATIVE DYSON wondered why confidential juvenile records couldn't be accessed. MS. WIBKER said that could be done. REPRESENTATIVE DYSON then inquired why it couldn't be left at 12 years of age. MS. WIBKER responded it could be left at 12 but the juvenile records would be Alaska only. Number 0866 MS. WIBKER continuing with her overview said Section 59 on page 45 addresses fingerprint background check requirements for foster care placement and emergency placements. She explained that federal law states "any placement" but the problem with that is when a child is taken in the middle of the night, there isn't time to do a fingerprint background check and most of the time the child is taken to a licensed facility or to a relative. A relative not getting paid for this is not subject to these requirements, but there are other procedures in place. She stated, "But if someone comes forward and says I would like an emergency license to care for these children - sometimes a teacher or a day care provider will say I'll take this child in as a foster child - what we put in place was a partial procedure where all of the criminal background information available immediately could be run. That person, if they meet the federal requirements based on their history, they could get a provisional license if they agreed to give us the two fingerprints and give us something under oath about their history, then they get a provisional license until we get the results of the fingerprint check. So we have some guarantees in place so that we don't prevent children from being able to go -- we have people who just can't afford to take children and need to get paid and we would have to subject them to whatever we could do immediately to give them a provisional license. Federal law is quite specific that there are some things that if they show up in the criminal history, you don't get a license ever and some things they will allow you to get a license if they're over five years old. In our amendments we gave more protection than federal law requires - we actually were broader." Number 0988 MS. WIBKER directed the committee's attention to page 46, lines 10- 13 which requires the department to systematically recheck criminal justice information records. She explained that under existing law, the duty is placed on the licensee to notify the department of any arrest, charge or indictment. Rather than relying on the self- reports in existing law, HB 375 places the burden of rechecking criminal background information on the department. MR. WIBKER said that concluded her overview of the changes and explained that Alaska was already in compliance with some of the federal provisions so no state change was required in some areas. Number 1043 CHAIRMAN BUNDE requested that Ms. Wibker be prepared to address the committee substitute at the next meeting; specifically to point out the federally mandated language versus the permissive language. He noted the public had previously expressed concern this proposed legislation did not relate to federal requirements. CHAIRMAN BUNDE asked Representative Dyson if the proposed committee substitute included the provision that information from the multidisciplinary child protection teams would be available to prosecutors, if warranted. REPRESENTATIVE DYSON said that was his understanding and in fact, it was designed, as was the Governor's bill, to facilitate that process. CHAIRMAN BUNDE noted that Section 53 of the proposed committee substitute deletes the need for immunity except in gross negligence. Number 1144 MS. COX explained the original bill provided immunity except in circumstances of gross negligence or intentional misconduct. The proposed committee substitute has eliminated immunity for simple negligence and instead imposes a liability for negligence or gross negligence. Number 1185 REPRESENTATIVE PORTER noted the multidisciplinary child protection teams are appointed by the district attorney under the proposed committee substitute. REPRESENTATIVE DYSON said that was correct. The Administration does not agree with this change; from their perspective the lead agency should be the Division of Family and Youth Services. Number 1214 MS. TORKELSON noted she is working with Legislative Legal Services to modify this language to read the district attorney shall form teams at the local level to develop written protocols to include who organizes the team, who enforces that everyone is there, et cetera. The Department of Law has indicated they don't have the staff or resources to enforce these teams, but they would be willing to commit to writing the protocols. CHAIRMAN BUNDE inquired how much of the proposed committee substitute is anticipated to change. MS. TORKELSON said other than housekeeping changes, the section dealing with the multidisciplinary teams will be revised and there will be changes dealing with immunity. Number 1441 CHAIRMAN BUNDE requested a revised proposed committee substitute be made available to committee members and Legislative Information Offices as soon as possible. Number 1498 REPRESENTATIVE J. ALLEN KEMPLEN referred to Sec. 11.51.110(a)(3) and inquired about a situation in which one parent gets inebriated and passes out at a party and the possibility of the other spouse accusing the person of endangering the welfare of their child. Number 1606 CHAIRMAN BUNDE observed that if one parent is passed out but the other person is sober, the child is still being carried for. It may be possible, however, for the sober parent to go across the street, for example, and make the charge. REPRESENTATIVE PORTER suggested the language should include "sole care" not just caring for the child. Number 1658 MS. WIBKER pointed out under the original bill, the offense is for leaving a child when there's not a sober person around. CHAIRMAN BUNDE stated this is an issue that will be discussed at the next meeting. CHAIRMAN BUNDE reiterated his request for Ms. Wibker to address the mandated versus permissive language in the revised committee substitute at the next meeting. Additionally, he requested that Mr. Webb or Commissioner Perdue be prepared to express the department's concerns and position. He announced the committee would address HB 375 again on April 2. ADJOURNMENT Number 1893 CHAIRMAN BUNDE adjourned the House Health, Education and Social Services Standing Committee at 4:40 p.m.