Legislature(1999 - 2000)
03/23/2000 03:03 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 23, 2000 3:03 p.m. MEMBERS PRESENT Representative Fred Dyson, Chairman Representative Jim Whitaker Representative Joe Green Representative Carl Morgan Representative Tom Brice Representative Allen Kemplen Representative John Coghill MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 409 "An Act prescribing the rights of grandparents related to hearings on petitions to adjudicate a minor as a child in need of aid and to the testimony of grandparents at those hearings; and amending Rules 3, 7, 10, 15, 17(e), and 19, Alaska Child in Need of Aid Rules." - HEARD AND HELD SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 270 "An Act relating to sexual assault and sexual abuse and to payment for certain medical costs and examinations in cases of alleged sexual assault or sexual abuse." - HEARD AND HELD HOUSE BILL NO. 301 "An Act relating to the education of exceptional children; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 300 "An Act relating to the establishment and enforcement of medical support orders for children; and providing for an effective date." - HEARD AND HELD PREVIOUS ACTION BILL: HB 409 SHORT TITLE: GRANDPARENTS' RIGHTS REGARDING CINA Jrn-Date Jrn-Page Action 2/16/00 2220 (H) READ THE FIRST TIME - REFERRALS 2/16/00 2221 (H) HES, JUD, FIN 2/23/00 2278 (H) SPONSOR SUBSTITUTE INTRODUCED 2/23/00 2279 (H) READ THE FIRST TIME - REFERRALS 2/23/00 2279 (H) HES, JUD, FIN 2/23/00 2279 (H) REFERRED TO HES 2/25/00 2315 (H) COSPONSOR(S): KOOKESH 3/23/00 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 270 SHORT TITLE: SEXUAL ASSAULT & SEXUAL ABUSE Jrn-Date Jrn-Page Action 1/10/00 1890 (H) PREFILE RELEASED 1/7/00 1/10/00 1890 (H) READ THE FIRST TIME - REFERRALS 1/10/00 1890 (H) STA, HES, FIN 1/21/00 1976 (H) COSPONSOR(S): KERTTULA 2/16/00 2224 (H) COSPONSOR(S): SMALLEY 2/18/00 2236 (H) SPONSOR SUBSTITUTE INTRODUCED 2/18/00 2237 (H) READ THE FIRST TIME - REFERRALS 2/18/00 2237 (H) STA, HES, FIN 3/07/00 (H) STA AT 8:00 AM CAPITOL 102 3/07/00 (H) Scheduled But Not Heard 3/09/00 (H) STA AT 8:00 AM CAPITOL 102 3/09/00 (H) Moved CSSSHB 270(STA) Out of Committee 3/09/00 (H) MINUTE(STA) 3/15/00 2487 (H) STA RPT CS(STA) NT 4DP 3/15/00 2487 (H) DP: JAMES, GREEN, HUDSON, OGAN 3/15/00 2488 (H) ZERO FISCAL NOTE (DPS) 3/15/00 2488 (H) REFERRED TO HES 3/16/00 (H) HES AT 3:00 PM CAPITOL 106 3/16/00 (H) Scheduled But Not Heard 3/23/00 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 301 SHORT TITLE: EDUCATION OF EXCEPTIONAL CHILDREN Jrn-Date Jrn-Page Action 1/21/00 1963 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1963 (H) HES, FIN 1/21/00 1964 (H) ZERO FISCAL NOTE (DOE) 1/21/00 1964 (H) GOVERNOR'S TRANSMITTAL LETTER 1/21/00 1964 (H) REFERRED TO HES 3/23/00 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 300 SHORT TITLE: MEDICAL SUPPORT ORDERS FOR CHILDREN Jrn-Date Jrn-Page Action 1/21/00 1962 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1962 (H) HES, JUD, FIN 1/21/00 1962 (H) ZERO FISCAL NOTE (REV) 1/21/00 1962 (H) GOVERNOR'S TRANSMITTAL LETTER 1/21/00 1962 (H) REFERRED TO HES 2/24/00 (H) HES AT 3:00 PM CAPITOL 106 2/24/00 (H) Heard & Held 2/24/00 (H) MINUTE(HES) 3/23/00 (H) HES AT 3:00 PM CAPITOL 106 WITNESS REGISTER PETER TORKELSON, Staff to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 POSITION STATEMENT: Presented sponsor statement for HB 409. JANNA STEWART, Administrator Central Office, Family Services Division of Family & Youth Services (DFYS) Department of Health & Social Services (DHSS) PO Box 110630 Juneau, Alaska 99811 POSITION STATEMENT: Testified on HB 409. GLADYS LANGDON, Children's Service Manager Southcentral Region Central Office, Family Services Division of Family & Youth Services Department of Health & Social Services 550 West Eighth Avenue, Suite 304 Anchorage, Alaska 99501 POSITION STATEMENT: Answered questions on HB 409. BETTY SHORT, President Grandparent's Rights Organization 510 West 42nd Anchorage, Alaska 99503 POSITION STATEMENT: Testified on HB 409. MARY LOU FOSTER, Vice-President Grandparent's Rights Organization (GRO 4051 Romanzof Circle Anchorage, Alaska 99517 POSITION STATEMENT: Testified on HB 409. MARCI SCHMIDT 2040 Wasilla Fishhook Road Wasilla, Alaska 99654 POSITION STATEMENT: Testified in favor of HB 409. REPRESENTATIVE ERIC CROFT Alaska State Legislature Capitol Building, Room 400 Juneau, Alaska 99801 POSITION STATEMENT: Presented HB 270 as sponsor. SAM SHEPHERD, Staff to Representative Eric Croft Alaska State Legislature Capitol Building, Room 400 Juneau, Alaska 99801 POSITION STATEMENT: Answered questions on HB 270. DEL SMITH, Deputy Commissioner Department of Public Safety PO Box 111200 Juneau, Alaska 99811 POSITION STATEMENT: Testified in support of HB 270. LAUREE HUGONIN, Director Alaska Network on Domestic Violence and Sexual Assault 130 Seward Street, Room 209 Juneau, Alaska 99801 POSITION STATEMENT: Provided agency's position and answered questions regarding HB 270. TRISHA GENTLE, Executive Director Council on Domestic Violence & Sexual Assault PO Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Testified in support of HB 270. BRUCE JOHNSON, Deputy Commissioner of Education Department of Education & Early Development 801 West Tenth Street, Suite 200 Juneau, Alaska 99801 POSITION STATEMENT: Testified on HB 301. RIC IANNOLINO, Board Member PARENTS, Inc. PO Box 21892 Juneau, Alaska 99802 POSITION STATEMENT: Testified on HB 301. STEVE ESSLEY, Special Education Attorney Disability Law Center of Alaska 3330 Arctic Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 301. WALTER MAJOROS, Executive Director Alaska Mental Health Board Office of the Commissioner Department of Health & Social Services 341 North Franklin Street, Suite 201 Juneau, Alaska 99801 POSITION STATEMENT: Testified in general support of HB 301. TIM WEISS PARENTS, Inc. 4743 East Northern Lights Blvd. Anchorage, Alaska 99508 POSITION STATEMENT: Testified on HB 301. FAYE NIETO 1521 Elcadore Drive, Number 108 Anchorage, AK 99507 POSITION STATEMENT: Testified on HB 301. MARC GROBER 104 Muldoon Road, Number 409 Anchorage, Alaska 99504 POSITION STATEMENT: Testified on HB 301. MARY KLUGHERZ PO Box 3379 Ketchikan, Alaska 99901-3379 POSITION STATEMENT: Testified on HB 301. DAVID MALTMAN, Executive Director Governor's Council on Disabilities & Special Education PO Box 240249 Anchorage, Alaska 99524 POSITION STATEMENT: Testified on HB 301. BARBARA MIKLOS, Director Central Office, Child Support Enforcement Division Department of Revenue 550 West Seventh Avenue, Suite 310 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 300. DIANE WENDLANDT, Assistant Attorney General Collections and Support Civil Division (Anchorage) Department of Law 1031 West Fourth Avenue, Suite 200 Anchorage, Alaska 99501 POSITION STATEMENT: Answered questions on HB 300. ACTION NARRATIVE TAPE 00-34, SIDE A Number 0001 CHAIRMAN FRED DYSON called the House Health, Education and Social Services Standing Committee meeting to order at 3:03 p.m. Members present at the call to order were Representatives Dyson, Green, Morgan, Brice and Coghill. Representatives Kemplen and Whitaker arrived as the meeting was in progress. HB 409 - GRANDPARENTS' RIGHTS REGARDING CINA Number 0209 CHAIRMAN DYSON announced the first order of business as Sponsor Substitute for House Bill No. 409, "An Act prescribing the rights of grandparents related to hearings on petitions to adjudicate a minor as a child in need of aid and to the testimony of grandparents at those hearings; and amending Rules 3, 7, 10, 15, 17(e), and 19, Alaska Child in Need of Aid Rules." PETER TORKELSON, Staff to Representative Fred Dyson, Alaska State Legislature, came forward to present the sponsor statement for HB 409. House Bill 409 is drafted with the intent to give grandparents more access to the Child in Need of Aid (CINA) hearing process. He explained that in case of an emergency hearing for a child, the Department of Health and Social Services would not be required to notify the grandparents because of the 48-hour requirement; it wouldn't be appropriate to force the department to find all these people in 48 hours, which would delay the hearing. After that initial emergency hearing, the department would then notify each grandparent of the status of the child. After that first notice, the department would only be required to notify grandparents who expressed interest in the case and asked to be kept abreast of the proceedings. If the grandparents are interested and involved in the child's life, then they should be kept in the loop. Otherwise, the department shouldn't be required to keep notifying persons who may not be interested. Number 0384 REPRESENTATIVE COGHILL made a motion to adopt the proposed committee substitute (CS) for SSHB 409, version 1-LS1458\G, Lauterbach, 2/16/00, as a work draft. There being no objection, Version G was before the committee. CHAIRMAN DYSON explained that Version G took out a portion that was superfluous and expensive, which the Alaska Court System had pointed out. REPRESENTATIVE GREEN asked about the fiscal note. MR. TORKELSON explained that the costs reflected in the fiscal note that were saved with the new CS would have been some initial up-front costs with drafting new court rules. The original sponsor substitute required the court to give preference to the parents' testimony over the grandparents' testimony unless a specific finding was made for some reason that the grandparents' testimony should be considered at a higher level. There are cases where grandparents could use their rights as leverage against a long-standing dispute with a son- or daughter-in-law, for example, and that shouldn't affect a child in a negative way. The court already gives precedence to the parents' testimony, and this would get into some sticky issues. The proposed CS removes that direct court rule change. Number 0520 REPRESENTATIVE GREEN said a $100,000 fiscal note seems somewhat out of line for what he sees this bill doing. CHAIRMAN DYSON said the court system can explain the costs, but he believes it has to do with the efforts necessary to locate and notify the grandparents. REPRESENTATIVE COGHILL asked if there are any problems identifying grandparents when people are living together and have a child but are not married. MR. TORKELSON answered that the department would be more qualified to answer how grandparents are defined. Number 0646 JANNA STEWART, Administrator, Central Office, Family Services, Division of Family & Youth Services (DFYS), Department of Health & Social Services (DHSS), came forward to testify. She stated that the division supports the involvement of grandparents in child in need of aid (CINA) cases. The division already engages in extensive searches for relatives in every case where there is a risk of a child being taken into custody, because it needs to determine whether or not the relatives are available for placement or available as general resources for these children and families. In the absence of any indication in the division records that grandparents are not suitable for placement or other resources, the division contacts them regularly. There is extensive documentation that is a part of every case record. MS. STEWART said the division has recently heard from social workers and field staff around the state who are feeling increasingly overwhelmed by paperwork and documentation tasks which do not meaningfully add to the protection of children. It is critical to be sensitive to balance the goals of the child protection system and the realities of how this work gets done. This bill has the potential to increase paperwork without meaningfully increasing the services to and protection for children. MS. STEWART noted that the fact is that grandparents are significantly different from the other persons who are currently listed in AS 47.10.030(b) - the child, the parents, the tribe, foster parents or other out-of-home care providers, guardians, and guardians ad litem. The reality is that foster parents and out-of-home care providers are known to - and usually licensed by - the division. The guardians and guardians ad litem can easily be identified because they are appointed through a court process. Tribes can be contacted through tribal directories and ICWA [Indian Child Welfare Act] workers. MS. STEWART indicated that the reality is grandparents cannot always be identified or located. Frankly, the division cannot always find and locate parents. When parents can be found, frequently they are not willing to provide names of their own parents. The realities of multi-generational abuse is significant; many of these parents are estranged from their own parents. It is not uncommon for the parents of the children taken into custody now to have had their own parents' rights terminated in previous court actions. Multi-generational divorces cause people to lose track or, in many cases, not even know who their own parents are. Frequently, children are born of temporary unions where the parents who raise them are completely unaware of the lineage of the absent parent. MS. STEWART said it is not uncommon for the department to go through a series of legal procedures just to identify a father, and has had to do termination of parental rights on numerous fathers until the right one was found. All of these factors complicate the division's ability to identify - much less locate - the grandparents. This increases, in some cases dramatically, the number of notices that will be required. In a typical blended family - his child, her child and their child - there are eight grandparents. Number 0897 MS. STEWART referred to a chart in the handout that showed how many grandparents the division would have to locate as a result of HB 409 using the estimate of 600 CINA petitions, which totals 2700 grandparents every year: Petitions filed per year estimated at 600 450 of those petitions include one child or siblings with the same parents 450 x 4 = 1800 150 of those petitions name at least 2 siblings who share only one parent child A 150 x 4 = 600 child B 150 x 2 = 300 Total grandparents 2700 MS. STEWART reported that the division has done estimates on locating those grandparents. She shared some sample genograms from real families in the DFYS, which are complicated family structures. If the division can locate two-thirds of those grandparents relatively easily, that equals a little over 2,000 grandparents that can be identified and located, but the division still has to provide notice to them. The notice requires time, paperwork, postage and phone calls. Approximately 350 of those grandparents are going to take some moderate search efforts, estimated at three hours each, which is a little over 1,000 hours of time to look for another set of grandparents. MS. STEWART said there is a significant number of grandparents that the division would have to do extensive search efforts which is estimated to take eight hours to track them down. There are situations where the best information gotten from the family is "I think his dad is in California." MS. STEWART pointed out there are some significant concerns with the definition of grandparent. "Parent" is defined in AS 47.10.990(19) as "the biological or adoptive parent of the child." If that definition is applied to grandparent, it isn't known what effect the termination of parental rights will have. Do terminations of parental rights (with or without retention of rights of inheritance), cultural adoptions, incest, or paternity disputes affect grandparent status? It sounds simple until the realities of the families served is looked at. MS. STEWART noted that the division suggests that the law of diminishing returns is at work here. The harder to identify and locate a grandparent, the more likely it is that the grandparent has had no meaningful contact with the child or the grandchildren and the less likely it is that that grandparent is going to be a be a placement option for that grandchild. There are innocent grandparents who are estranged from their children and would love to have contact with and be a meaningful resource in the family. The problem is the cost of trying to assess which grandparents should be located and which are better left alone. Number 1098 MS. STEWART indicated that the division would like to propose a number of amendments to the bill. Those amendments were distributed to the committee members. REPRESENTATIVE BRICE asked who now does the notification of the people listed. MS. STEWART answered that the division does the work of identifying who has to be notified, and the notice itself is prepared and distributed by the Department of Law. REPRESENTATIVE BRICE asked who in DFYS does the work to notify the people listed. Number 1168 GLADYS LANGDON, Children's Service Manager, Southcentral Region, Central Office, Family Services, Division of Family & Youth Services, Department of Health & Social Services, came forward to answer questions. She explained when DFYS first gets a case, the first notice usually is made by the intake social worker. REPRESENTATIVE BRICE asked what is wrong with allowing the case file and that social worker to be available to interested grandparents with the parents' consent. MS. LANGDON noted there is no problem with that; that is already being done. Number 1231 REPRESENTATIVE BRICE asked if a grandparent can call the intake social worker and talk openly about the case. MS. LANGDON replied unless the parent has given permission, the grandparent is not a party to the case. REPRESENTATIVE GREEN asked if the grandparent was obligated to look for the division or would the division look for the grandparent. MS. LANDGON answered currently, the division will initially look for the grandparent to try to find placement. Number 1422 BETTY SHORT, President, Grandparent's Rights Organization, testified via teleconference from Anchorage. She stated that the Grandparent Rights Organization is very pleased with HB 409. The bill allows the grandparents to have the opportunity to be involved in the hearings held by the state in cases involving their grandchildren. This is a very important procedure for the courts and DFYS to be able to properly establish what is in the best interest of the child. Of utmost concern is how the initial contact with the grandparents will be established. What steps will be made to ensure that the state follows these statutes? As things stand now, the DFYS does not often follow the statutes that currently exist. The DFYS needs to be held accountable for its actions. MS. SHORT noted it appears that DFYS is looking more at the money side of it rather than what is in the best interest of the child. She knows of people who have gone to DFYS and asked to be notified, and they were told that you are not a party to the case and have no rights, and the grandchildren are put in foster care. She believes that grandparents are a solid part of the grandchildren's lives and being shut out it is not doing the children any good. REPRESENTATIVE BRICE asked if this was consistent across the state. MS. SHORT replied she has gotten over 100 phone calls from across the state and people are glad something is going to be done about the situation. REPRESENTATIVE COGHILL asked Ms. Short if she had any thoughts on the DFYS testimony about how hard it is to find grandparents. Number 1562 MS. SHORT suggested a newspaper advertisement could be run for a certain length of time seeking certain grandparents. She also suggested phone calls and possibly a state or national registry where a grandparent could register with DFYS to be notified if there is any problem. CHAIRMAN DYSON noted he doesn't want to put a monstrous burden on the department, and he can see where it could be in the exceptional cases. He asked Ms. Short and her group to brainstorm how this could be limited to Alaska's DFYS being responsible for locating and notifying grandparents that live in Alaska. He encouraged her to network with some of the national organizations and see if anyone has figured out a better way to do this. MS. SHORT agreed to look into that. Number 1657 MARY LOU FOSTER, Vice-President, Grandparent's Rights Organization (GRO), testified via teleconference from Anchorage. She explained GRO is also a national organization that started about ten years ago. She has nine grandchildren and has been a foster parent for her own three grandchildren. She agreed that the department paperwork takes time away from the children. She wondered if it were better for the children to be raised by their grandparents first and then foster parents. The cost would certainly offset the cost of the paperwork. She noted that grandparents are being denied by the DFYS to have the grandchildren. She feels the rights are blood regardless of whether the parent is married. She indicated that more than half of the grandparents are willing to take over and raise the grandchildren even on their fixed incomes. Number 1766 MARCI SCHMIDT testified via teleconference from the Matanuska- Susitna Legislative Information Office in support of HB 409. She commented it is a shame to have to put into law what should be common sense. Grandparents are coming forward when they find out that their grandchildren are in foster care, and they are denied access or even the right to take in these children. There are relatives out there willing to take in the children so they don't have to go into foster care. The cost would be better served if relatives were eligible to take care of the children rather than turn them away. She urged the committee not to let this bill get lost in the system and not be implemented. REPRESENTATIVE COGHILL asked Ms. Schmidt how she would see solving a problem if one exists between the grandparents and the parents. MS. SCHMIDT said it is probably a 50-50 thing. She knew of one grandparent who sat in DFYS for five hours after her daughter called her to get her children, and the grandparent was told to go home, it wasn't her concern. She said it comes down to the state balking to place the child with the relatives. CHAIRMAN DYSON indicated HB 409 would be held over. HB 270 - SEXUAL ASSAULT & SEXUAL ABUSE Number 1920 CHAIRMAN DYSON announced the next order of business as Sponsor Substitute for House Bill No. 270, "An Act relating to sexual assault and sexual abuse and to payment for certain examinations in cases of alleged sexual assault or sexual abuse." [Before the committee was CSSSHB 270(STA).] Number 1929 REPRESENTATIVE ERIC CROFT, Alaska State Legislator, sponsor of HB 270 came forward to present the bill. He explained that SSHB 270 requires that the victims of sexual assault cannot be charged for the costs of forensic exam. This is not a medical procedure, it is a procedure for the gathering of evidence. It should not be charged under a woman's medical insurance, and in the vast majority of cases it is not. The reason he introduced this is to clarify in law for those rare cases that to charge a victim is not appropriate. Number 2011 REPRESENTATIVE BRICE asked Representative Croft why it was limited to just adult victims. REPRESENTATIVE CROFT said that wasn't done at first, but he found out that the program at Alaska Cares would be destroyed because many of their clients are Medicaid-eligible, and this would affect that. There are difficult issues. It is usually not the child that is consenting to this, it is the parent. When there are issues of parents having more control about not investigating something where they might be the suspect, it got troublesome. He tried to craft it around all that, but eventually just limited it to adults. REPRESENTATIVE BRICE said he was very concerned about what Representative Croft was saying. "Alaska Cares program sounds like what they're doing is charging Medicaid for forensic tests that should be paid by the police department." Number 2091 SAM SHEPHERD, Staff to Representative Eric Croft, Alaska State Legislature, explained in the discussions with Diana Weber from Alaska Cares, she said there was an agreement with the Anchorage Police Department, whether the child may have a diaper rash or there is a lot of reason to believe there is sexual abuse, not sexual assault, that there are considerations of sexual abuse, and the child can be brought to Alaska Cares without concern about ability to pay. For whatever reason, Alaska Cares will be able to bill Medicaid. There are a lot of reasons why it should be a police payment, but it is not. If children were included in the bill, Alaska Cares would be out of business. REPRESENTATIVE CROFT noted he struggled with that a long time and it is an appropriate question to ask, but he was not able to write it that way. REPRESENTATIVE BRICE said his concern is by explicitly stating an adult victim, in Fairbanks where there isn't an Alaska Cares, it is implied that the families of minors will have to pick it up, or that insurance companies will have to be charged for it. REPRESENTATIVE CROFT explained there were two different approaches and they chose the one. He said that Texas uses the approach "who does pay." At least one version of the draft early on said police shall pay for this, and that is the appropriate place to do it, but then there are fights about in which police jurisdiction it occurred. In Anchorage the municipality has a grant that goes to Providence Hospital where there is a special room and trained people. It is done for a set price: $100,000 will cover all the accommodating, the room and collateral help for these exams. If the bill says police must pay, there is a question of how to deal with the situation where it is done by a grant or some other innovative way. "We kept coming back to saying who should not rather than directing who should, though in the vast majority of cases, it ought to be the police." CHAIRMAN DYSON noted that Representative Croft touched on some of the problem. Some of the children get flown in from some other jurisdiction, and it would be confusing which police pays, and many areas do not have police. REPRESENTATIVE BRICE suggested maybe it should just say the victims of sexual assault under the statutes shall not pay and leave it at that. Then leave it up to whoever provides the service to figure out who will and who won't pay. REPRESENTATIVE CROFT said that is the way it is said in the current version, but the adult--that concept that it says who may not, not that the police shall, is getting into the jurisdiction issue. DEL SMITH, Deputy Commissioner, Department of Public Safety, came forward to testify. He reported that the department, law enforcement statewide and the Alaska Police Chiefs Association support this kind of legislation. In his experience, the police have never thought it appropriate that a victim of a crime should pay for anything in the way of gathering forensic evidence to support the prosecution of that crime. The victim ought never to see the charge on her insurance forms or be hassled in any way. MR. SMITH referred to Representative Brice's question. When the department originally looked at the bill, he talked with Duane Udland, Chief, Anchorage Police Department (APD), and he brought up the point that costs were already being covered for youth, and it was not being billed to them. Mr. Udland didn't think it should be switched to have the APD pay for an exam that was already being paid for. TAPE 00-34, SIDE B Number 2361 REPRESENTATIVE BRICE asked Mr. Smith where the money comes from. MR. SMITH said he asked the Violent Crimes Compensation Board if they knew of anybody who had been billed directly. He has not been able to find a circumstance where the bill actually went to the victim. The cost of the exam is part of the cost of doing business. The Department of Public Safety expended approximate $49,000 in the last fiscal year, and APD has paid Providence Hospital approximately $150,000 for sexual assault exams. CHAIRMAN DYSON asked Mr. Smith what happens when in a case of suspected child abuse, and an examination is done on the child looking for signs of sexual abuse, in most of those cases there won't be forensic evidence; as soon as there is reasonable presumption that there has been a crime, then law enforcement is contacted, and the team that meets includes a representative from DFYS or a child advocate, somebody from law enforcement and forensically-trained people. He asked if it is true that there may be some of the cases where there's a process that goes on before it is known there was a crime, and is this the area that the Alaska Cares folks are concerned about. MR. SMITH answered he would say yes, although he wouldn't want to try to answer for DFYS. A lot of the cases in DFYS do not involve the police; there is an examination, and if it is determined medically there is a problem, the DFYS brings in law enforcement. He doesn't expect law enforcement to pay for an examination when it was not involved in it initially. If somebody, for example, said "I was sexually assaulted six months ago and had an exam, now I would like you to pay for this," law enforcement, in his view, would not or should not be obligated to do that. If evidence is going to be collected to prosecute a case, then law enforcement needs to be involved in the decision and the process from the beginning. REPRESENTATIVE BRICE asked what about a 17-year-old girl who was violently raped. Implicitly she has to pay for this exam or her insurance does under this bill. MR. SMITH said a violently, sexually assaulted person should not be subjected to the bill. Any agency he has to do with is going to pay for the collection of the evidence. He doesn't read that the way it says "adults" would necessarily imply that law enforcement would bill someone under the age of 18. REPRESENTATIVE BRICE said ten years of working in this building tells him different. "When we say A, we mean A and don't mean B." He agrees it would be a heartless, sick thing to do, but he is just looking for some way in those instances to fix it. MR. SMITH said in discussions with the sponsor, he knows they have tried very hard to find a way to take care of the problem. Number 2104 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, came forward to testify. She clarified that while it may be true that Deputy Commissioner Smith may not have found an instance where law enforcement has forwarded a bill, hospitals have. It has happened in the Mat-Su Valley, on the Kenai Peninsula, and in Southeast, and that is why the bill is being brought forward. It is important to keep the word "indirectly" in there or to state "not charge health insurance." "Unfortunately, Representative Brice, if you just say victim, there are still agencies who take it that means sending me the statement. They don't consider my insurance as being the victim." It is important to encapsulate that indirectly. She reemphasized that often it is DFYS that is bringing children forward and billing Medicaid, and DFYS has that arrangement with Medicaid. MS. HUGONIN explained what it is like to undergo a rape exam. It is graphic and hard to hear. If a woman is sexually assaulted and is taken to the hospital by police, a friend, or gets herself there, she goes into the emergency room most often. She will be triaged and may be in the waiting room for a few minutes or several hours. If she is in a community with an advocacy program, she will have someone wait with her and explain the process, but that doesn't always happen. In the examination room, she is the crime scene. First, she stands in the middle of the floor on a white sheet of paper and brushes down her clothes. She then takes off her clothes; if they are the clothes in which she was sexually assaulted, she doesn't get them back because they are evidence. She brushes down again to get any possible hairs or fibers. She sits at the examination table. The clothes get folded up and placed aside. MS. HUGONIN continued explaining there is a packet which contains envelopes and different pieces of paper. They are taken out, and one by one they are gone through. One packet may contain a swab to go underneath her fingernails to find and skin or hair that she might have been able to get from the perpetrator, and that is put in an envelope. Another one is taken out, and her hair is combed through to see if there are any that are not hers to be tested for DNA [deoxyribonucleic acid]. She is checked over for bruises or cuts or abrasions or broken bones. At that point, if she can tolerate going further, the exam is continued. Another packet contains a little comb which is used to comb the pubic hair to see if there are hairs that are not hers. Another envelope will contain a tweezer to pluck pubic hairs to test her DNA and match it against the perpetrator's. There is a gynecological exam to look for tears and abrasions, and pictures are taken in that position. A black light is shone in her orifices to see if there is any semen; there are swabs that are collected and put it separate envelopes. MS. HUGONIN said that the sexual exam can take anywhere from 40 minutes to three hours depending upon how traumatized she is. When the examination is finished, hopefully there are clothes for her to wear home from the hospital, and she can leave. MS. HUGONIN mentioned that in the best of circumstances the perpetrator is caught, evidence has been collected and used in the prosecution to a good end, and the perpetrator is jailed. She indicated that as the victim recovers from this heinous crime, at every point where the victim has to relive it, and she does relive it because it is not something that can be forgotten. She emphasized that it is incomprehensible that the victim should have to relive the crime upon receiving a bill for the assault exam from her insurance company. It puts her right back to when it happened. MS. HUGONIN urged the committee to expedite the passage of this legislation. She shares the concern about children, but it doesn't seem that practically this year that can work out in a way where the bill can get through both the House and the Senate. It is important to her that this stop as soon as possible for as many people as possible, and if there are other areas to work on over the interim, her group would be interested in doing that. Number 1731 TRISHA GENTLE, Executive Director, Council on Domestic Violence and Sexual Assault, came forward to testify. She dittoed Ms. Hugonin's testimony and asked for the committee's support on HB 270. It is a problem that has come up sporadically around the state. She has been working with victims of sexual assault since 1982, and it has been around since then. It is time to support victims and say this won't be allowed to happen to them. MS. GENTLE agreed the issue of children is important too. She believes that during the interim they need to be able to look at exactly what the costs are, exactly what the system is, how it's working and what would be appropriate and helpful legislation or addition to this and what might be harmful to centers that already exist. REPRESENTATIVE COGHILL asked for the difference between "an adult victim" and "a victim." MS. GENTLE answered that it is an issue of clarity because it isn't known how it may or may not affect the children's programs, and this is happening with adult victims. She believes the discrepancy may be in the "direct or indirect" issue. Indirectly paying through Medicaid, through insurance, through grants or things like that, happens with children. What is not wanted is a victim's insurance to be billed. REPRESENTATIVE BRICE said he believes it is possible to artfully cut out child advocacy centers to ensure that the process will cover juveniles. REPRESENTATIVE CROFT wants the committee to be comfortable with this bill when it moves out of committee, and that it is the right fix for the situation. He suggested working on it this weekend and hearing it next week. CHAIRMAN DYSON suspended the hearing on HB 270. [HB 270 was heard and held.] HB 301 - EDUCATION OF EXCEPTIONAL CHILDREN Number 1468 CHAIRMAN DYSON announced the next order of business as House Bill No. 301, "An Act relating to the education of exceptional children; and providing for an effective date." Number 1458 BRUCE JOHNSON, Deputy Commissioner of Education, Department of Education & Early Development, came forward to testify. He read the following testimony: We believe the passage of this bill is important for Alaska's children, especially the children with disabilities in our state who benefit directly from services supported by this legislation. As many members may be aware, the Individuals with Disabilities [Education] Act (IDEA) was enacted by Congress in 1990. The Alaska Legislature adopted the present IDEA statutes in 1993 to conform to the first federal IDEA. The federal IDEA was extensively amended in 1997 with the federal regulations interpreting that amendment published in the summer of 1999. We are now considering the amendments of the state IDEA statutes to ensure conformance with the new, stronger, and more detailed federal law. As members have no doubt determined, HB 301 provides considerable reference to federal IDEA, which we believe is a good strategy, particularly when recognizing that federal IDEA fills over 48 pages, accompanied by IDEA regulations that fill another 75 pages. The department believes that the bill's strong reference to federal IDEA appropriately strengthens our state statutes and ensures that available federal resources are available for Alaska's students. The bill, as written, clarifies the state role in education of our exceptional children and provides the opportunity, if signed into law, to ensure that the state is in compliance with federal IDEA. This bill repeals inconsistencies with federal law and offers clear guidance and assistance to school districts in delivering services to special education students. Finally, this bill clearly defines its services for gifted and talented students are the responsibility of the individual school districts and are not required or financially supported by federal government. Thank you for the opportunity to provide an overview of HB 301. I'd be happy to answer any questions and would invite Dr. PJ Ford Slack, our state special education director forward to assist. CHAIRMAN DYSON refreshed the committee's memory: "As I remember, the state has had a couple three years to kind of get on top of this. Got started a bit late. The person who was working on it ... quit or disappeared ... so there [are] lots of unfortunate things that happened to bring us to this apparent near-crisis, and the administration represents that if we don't get this done, we will be disqualified for how many million dollars?" Number 1300 MR. JOHNSON indicated the department has just received notification today that next year's allocation will be $14.3 million. CHAIRMAN DYSON noted that he and Senator Miller, Chairman, Senate Health and Social Services Committee, wrote to Senators Murkowski and Stevens asking if there was any possibility of a waiver, and they got a negative response. CHAIRMAN DYSON announced this bill will not be moved today. The intention is to hear from advocacy groups who have worked on this and submitted criticisms and suggestions and questions. The Department of Education & Early Education wants to hear the testimony and has committed to working over the weekend and coming up with a committee substitute for Tuesday's meeting. There will be an attempt to get all the information out to the interested parties so when this is brought up on Tuesday, people will have a chance to testify on the near-final piece of legislation. Number 1181 RIC IANNOLINO, Board Member, PARENTS, Inc., came forward to testify. He explained there are 20,000 children in Alaska's schools that receive IEPs [Individual Education Plan] that are covered by the IDEA. Some of the state laws and regulations have inconsistences with IDEA, and this does make it a cleaner, easier way of dealing with laws in general. CHAIRMAN DYSON asked Mr. Iannolino what the mission of PARENTS, Inc. is. MR. IANNOLINO answered that the mission of PARENTS, Inc. is to assist parents of children with disabilities to receive the services they are entitled to in schools. It is advocacy, training, and it supports services and information about parents being able to assist their children with specific disabilities. CHAIRMAN DYSON asked Mr. Iannolino if this was a federally mandated organization or was there some enabling federal legislation that puts organizations like this into place. MR. IANNOLINO said it is a national organization, and it is named in IDEA as a resource. The group is funded by a federal grant. He further answered a question from Representative Green that it includes both physical and mental disabilities. Number 1076 MR. IANNOLINO noted his organization is concerned with the issue of losing the federal funds if the state doesn't comply. PARENTS, Inc. is currently under the Office of Special Education Programs (OSEP). If they were to lose that much money [$14.3 million], there is a more draconic issue here. If services aren't provided to families with children with disabilities because the special education programs won't have the money, the money will have to come out of the general fund. In addition to that, something that is more frightening, and no one wants to happen, is that parents will probably file lawsuits, which means millions and millions of dollars of more money that would be drained out of education in this state if the state doesn't come in compliance, and the special education money is lost. Without the special education money, schools will not be able to provide the services to the children and families that IDEA requires. CHAIRMAN DYSON asked Mr. Iannolino to highlight the areas in the bill that he has concerns about that need to be modified in some way. MR. IANNOLINO said PARENTS, Inc. would present written testimony. Number 0937 STEVE ESSLEY, Special Education Attorney, Disability Law Center of Alaska, testified via teleconference from Anchorage. He read the following testimony: State law concerning education for Alaskan children with disabilities should not conflict with the revision of the federal IDEA. We believe the following sections of the bill should be revised. Section 3. [Obligation to provide special education: enrollment versus residence]. This change is not required in order to ensure compliance with federal law. But we understand that the federal office of special education programs suggested a revision regarding Alaska's unique correspondence school. The side-by-side dated February 9 ... said this proposed change clarifies this statewide correspondence programs are responsible. The Governor's letter to President Pearce states that "correspondence schools will have to be creative in providing special education and may have to contract with the home school." Unfortunately, the change in the legislation goes far beyond statewide correspondence programs. This change is a shift from an obligation to deliver special education and related services based on residence to an obligation based on enrollment. This will likely lead away from community-based inclusive with the least restrictive special education. For example, our children in state boarding schools would be affected by this change. We currently have complaints about special education issues at both the Alaska State School for the Deaf and Mt. Edgecumbe. We expect the proposed change will increase those types of problems and possibly increase the budget of state-operated schools. Our written testimony raises several other unresolved questions regarding other district placement. Disciplinary exclusions of disabled students and services in youth detention facilities, we provide a revised form of AS 14.31.186 that retains the residency-based allocation of fiscal and administrative responsibility while attempting to address those issues, as well as boarding and private school enrollment. In Section 5, the federal law changes encourage alternate dispute resolution and require that the state make mediation available. To be effective, nonadversarial remedies, such as mediation, need time to accomplish their objectives. We believe the proposed six-month statute of limitations is contrary to federal law and that the most analogous period could be applied should be two years. This statute of limitations should apply to all parties. We have a committee substitute ... that provides for a one year of statute [of limitations] and is certainly an improvement, and we thank you for that. In Section 6, applicable federal regulation requires states to maintain a list of qualifications of hearing officers. We simply propose these qualifications be sent to parents and believe this would foster dispute resolution. In Section 12, this section contains the repeal of a number of Alaska's special education laws, several of which are not clearly in conflict with federal law and are important civil rights for Alaska's most vulnerable children. We encourage you to retain, at a minimum, such important state's rights as the obligation to identify children needing special education and related services, also known as "childfind," that's currently AS 14.30.274; the right to a free and public education in the least restrictive environment, that's at AS 14.30.276; minimum state criteria for an IEP as in AS 14.30.278; and state law definitions that special education and related services that we believe are consistent with federal law. Those two are found at AS 14.30.350(9) and (11). It would be inconsistent for this body to seek meaningful education reform and to simultaneously curb these important civil rights in state law. Thank you for your consideration of our comments, and we look forward to continued dialog on this legislation. It is of great importance to Alaska's students with disabilities and their families. CHAIRMAN DYSON asked Mr. Essley what the mission is of the Disability Law Center. MR. ESSLEY answered the Disability Law Center has a variety of federal mandates to advocate for and protect the rights of mostly individuals with the most severe disability, defined in federal law as those with developmental disabilities and people with mental illness who are in some type of facility, which usually means a state hospital. He further answered that the Disability Law Center gets money from the state and federal governments. He guessed the budget would be in the region of $1 million which provides a centralized Anchorage office and three outlying offices. Number 0483 WALTER MAJOROS, Executive Director, Alaska Mental Health Board (AMHB), Office of the Commissioner, Department of Health & Social Services, came forward to testify. He explained that one of the responsibilities of that board is to advocate on the behalf of children and youth with serious emotional disturbances who are eligible to receive special education services in the state of Alaska and elsewhere. The board shares statutory responsibility with the population with the Governor's Council on Disabilities & Special Education. The board is generally in support of HB 301, but there are some concerns. He explained the board's perception of what the problem is concerning children with serious emotional disturbances (SED). Historically, SED children have not adequately had their needs addressed within the special education services program throughout the state. Many of the SED children are not being identified to receive special education services and that those who are receiving special education services often do not get the counseling and treatment services that they need, and that should be included as part of their IEPs. MR. MAJOROS said the board would like to see the bill strengthen and not weaken the rights of parents and children so they can receive the most comprehensive special education services. One of the areas that needs to be debated is the issue of responsibility of services should be based on community of enrollment versus residence. The six-month statute of limitations for the due process hearings is a problem, and that should be at least one year and preferably two years to encourage parents to use alternative routes such as mediation. The AMHB shares some of the concerns expressed by the Disability Law Center, by repealing the special education statutes the risk of losing of proactive mandates that currently exist in state law such as childfind program, the idea of educational services in the least restrictive environment, relegating everything to regulations and repealing the statutes, and the minimum state criteria that exists in state law for IEPs. Number 0177 TIM WEISS, Board Member, PARENTS, Inc., testified via teleconference from Anchorage. He is the parent of a child with disabilities. PARENTS, Inc., is the only entity authorized under IDEA who is currently in full compliance with the requirements stated in IDEA regulations. PARENTS, Inc. represents parents and children throughout the state. TAPE 00-35, SIDE A Number 0066 MR. WEISS said all items in the current laws are out of compliance with IDEA. Section 3 correspondence schools, residence versus enrollment is an issue of merely who pays. That is not a major issue in the eyes of PARENTS, Inc. except that the change the department is proposing does in fact provide more choice for parents over what schools they want. Section 5, the statute of limitations, PARENTS, Inc. concur that six months is not sufficient. They would prefer two years; however, one year is sufficient also. Section 6, maintaining a list of hearing officers, is already required under federal law in IDEA and its regulations. Section 12, all of those other sections that the removal of were objected to are explicitly mentioned in federal law and regulations. There is no need to put back into state law because that will limit the state's ability to go beyond that and provide additional protection. Number 0241 FAYE NIETO testified via teleconference from Anchorage. She thanked the committee for bringing this bill forward. She appreciates the work of Steve Essley at the Disability Law Center. She is confused as to why at this late date this information is being brought forward when many people who sit on the special education advisory committee with the Governor's council had the information in December. She urged the committee to look at the wonderful practices that IDEA provides the state and the 20,000 children who receive services. She also urged the committee to look at the wealth of information, as Bruce Johnson pointed out, is embodied within IDEA which provides a description of how to operate. She hoped the committee moves this quickly so corrective action is not put in place by the U.S. Department of Education. She noted that April 14 is when the U.S. Department of Education will review the compliance efforts. Number 0488 MARC GROBER, Attorney, testified via teleconference from Anchorage. He has been involved with litigating and representing parents of exceptional children for many years. He has testified about an almost identical situation in 1993 before the legislature; he drafted SB 315 that was introduced by Senator Miller in the 18th Legislature. He has been appointed by the OPA [Office of Public Advocacy] to represent parents and children in this area; and has been a DOE [Department of Education] hearing officer for IDEA. MR. GROBER stated this a very complex situation. He noted he shared quite a bit of material in the past hoping that the committee could become fluent in this area where there is so much jargon. He commented HB 301 is trying to "patch a toothpick and turn it into an ocean liner." The legislation that the agency has offered is a disaster, and he believes the committee couldn't do worse starting from scratch. The real question is "why are we here?" There has been some suggestion, as was suggested in 1993, that if something isn't adopted immediately, money will be lost. He indicated he has spent time conferring with the congressional delegation, and he spoke with Senator Stevens' staff today and was advised that the U.S. Secretary of Education has not indicated that there is any intention yet to cut off Alaska's funding. The federal government wants to see Alaska move forward; that doesn't mean Alaska has to adopt poor legislation. MR. GROBER noted there are a number of issues that the bill presents that a number of people have reviewed. He went over some issues that haven't been discussed: whether the initial sections of the bill, deferring essentially ongoing authority to federal legislation, may be unconstitutional. There are some cases he is attempting to research that may illuminate this problem. He as yet doesn't have an answer, and that is a concern for him. There are major issues with the due process provisions that the bill would allow to remain in Alaska statutes inasmuch as they would remain inconsistent and noncompliant. There are additional issues with the whole concept of the state's role in this venue. Unfortunately, because this is a very legal issue, and there are so many non-legally trained people involved, people often get confused. He wanted the committee to understand that the IDEA does not control the individual actions of local school districts, parents and students. The way the IDEA is fashioned is that is presents a carrot if the state adopts local policy which meets federal minimums. It needs to be understood that if the policy statement of this bill is adopted, Alaska is essentially enacting as the state standard the lowest possible standard. Some of the advocacy groups will tell the committee that is bad because it is tying the state to the lowest possible standard. If Missouri can set out a standard or policy that is beyond the federal statutes, then Alaska can be challenged to do likewise. MR. GROBER noted he had submitted additional testimony today via e-mail to all the committee members. He urged the committee to pass good legislation and not pass bad legislation for the fear of losing money. He finds it hard to believe that the Secretary of the United States Department of Education is going to cut off funding to a state which is trying to enact legislation enabling its agencies and school districts to provide appropriate public education to its students. He urged the legislature to become involved in this. CHAIRMAN DYSON commented he was interested in Mr. Grober's information that the Secretary of the Department of Education would not cut Alaska off because he has also been in contact with both of Alaska's Senators, and they didn't give Representative Dyson much hope. He asked Mr. Grober to drop him a note on that issue. Representative Dyson told Mr. Grober that his staff would get him a copy of the CS when it is available. Number 0985 MARY KLUGHERZ testified via teleconference from Ketchikan. She is a parent and was former chair of the Ketchikan School District's Committee on Gifted and Talented Education. She noted that the Alaska Legislature was a pioneer when it created this initial legislation because the definition of exceptional children included disabled children as well as gifted children. This statute addresses these two distinct groups of students. Virtually every part of this statute either amends or repeals legislation that covers both learning disabled (LD) and gifted and talented (GT) children. It is effective to leave LD children with the protection of the federal law, but it strips all protections from GT students. The GT students will have no statutory rights or protections which they have had since 1970. MS. KLUGHERZ indicated that the bill repeals all but two minor statutes related to gifted education in Alaska. All that remains is a definition and the authority for districts to provide something by regulations adopted by the Department of Education & Early Development. All the other protections and due process rights of this population are completely stripped away. Whatever problem the state may have with complying with IDEA for the learning disabled children, there is no reason to abandon the gifted children. Gifted children represent 5-10 percent of the student population. As this bill is looked at over the weekend, keep in mind, that the original intent of the legislature included gifted and talented children in the due process and procedural rights that were afforded to learning disabled children. The same process and rights need to be provided for gifted and talented students. CHAIRMAN DYSON asked if Ms. Klugherz believes the state's responsibility is the same for gifted children as for children with profound disabilities. MS. KLUGHERZ answered yes it is, and it was the intent of the legislature in the original legislation. Number 1174 DAVID MALTMAN, Executive Director, Governor's Council on Disabilities & Special Education, testified via teleconference from Anchorage. He explained the duties and responsibilities of the Governor's Council on Disabilities & Special Education. He noted that the bill is an important civil rights statute. This is a statement of the rights and responsibilities that connects families with government (schools) and connects them in a way that they are equal partners with the school in direct education of the children. The civil rights statute being considered also establishes a way for parents and schools to resolve their differences. The council believes this bill is necessary because Congress has changed federal law, and it has changed it to the extent that Alaska's state law is inconsistent or conflicts or someway doesn't represent the improvements that have been made in federal law that would be good for Alaskan families. The council would like to see this bill move along because it makes a statement about the rights and responsibilities of parents and schools to educate children with disabilities. CHAIRMAN DYSON asked Mr. Maltman if he thought the bill was fine the way it is. MR. MALTMAN noted the council had suggested some improvements and submitted those in writing, which have also been identified by other groups who have previously testified. He said that the council is also concerned about the removal of gifted education. The council is not comfortable with repealing the rights and responsibilities of parents with gifted students and would like to see some improvements in this area. CHAIRMAN DYSON asked if it is the policy position of the council that there is a public and state responsibility for gifted children that is the same level as those with profound disabilities. MR. MALTMAN said the council respects what the GT people have had. The GT students have not had the best of programs, but the GT parents have had the basis to interact with schools about the education for their children. The council would prefer a much improved system for gifted education where the state actually identifies and perhaps standardizes eligibility, curriculum perhaps, and ways to identify these children. CHAIRMAN DYSON asked Mr. Maltman if he considered being gifted a disability. MR. MALTMAN answered no. He believes that all parents would like to regard their children as special in many ways. The GT students have unique talents, and it is worthy of the state to invest in their education. CHAIRMAN DYSON closed the hearing on HB 301. [HB 301 was heard and held.] HB 300 - MEDICAL SUPPORT ORDERS FOR CHILDREN Number 1564 CHAIRMAN DYSON announced the next order of business as House Bill No. 300, "An Act relating to the establishment and enforcement of medical support orders for children; and providing for an effective date." BARBARA MIKLOS, Director, Central Office, Child Support Enforcement Division (CSED), Department of Revenue, came forward to testify. She said one of the major questions a number of the committee had asked was if this bill passes, what can be done about existing cases even though parents didn't want the financial and medical orders tied together. She noted that CSED came up with a plan. The CSED can run a list of those cases using the computer, then it can notify the parents that they may apply to CSED to have the financial support obligation vacated. Then CSED would review the case to make sure that both parents had due process, and if they both agreed the financial support order should be vacated, it would be vacated. CHAIRMAN DYSON asked Ms. Miklos when the financial order was initiated, did both parents have to give permission. MS. MIKLOS answered no. CHAIRMAN DYSON asked then why do both parents have to give permission to undo it. MS. MIKLOS said whenever an order is vacated, the CSED wants to make sure that both parents are in agreement in the action. If one of the parents wants the financial support order enforced, the CSED is obligated to do that. CHAIRMAN DYSON asked if Ms. Miklos was saying even if one of the parents wants to continue to have the order in enforcement, that should have never been there in the first place, the CSED is going to continue it. MS. MIKLOS answered yes, and the CSED would be required to do that. CHAIRMAN DYSON said he must be missing something. MS. MIKLOS explained the CSED is required to establish a child support order when someone goes on public assistance or Medicaid. The order is established. Both parents are not always in agreement that they have that order. The CSED continues to enforce that order until the parents withdraw from services. REPRESENTATIVE COGHILL asked for an explanation of the orders. MS. MIKLOS answered that are court orders and there are administrative orders that come from CSED which hold not quite equal weight to the court order. In cases of divorce and dissolution, there is a court order because there has been a legal process. In cases of public assistance and Medicaid, there hasn't necessarily been that legal process so CSED develops an order. If there is already a court order, the CSED does not do an order. In terms of correcting the problem, this bill is only talking about the orders done by CSED. Number 1920 MS. MIKLOS said the most important thing to her is that this bill will prevent problems in the future. This bill helps CSED take care of some problems that shouldn't be there. The CSED is glad to go back and correct the problems from the past. CHAIRMAN DYSON asked Ms. Miklos what the process is for an administrative order. Number 1946 MS. MIKLOS said first of all paternity is established, then the people would be notified that CSED, because of public assistance, is getting ready to prepare an order. The CSED asks for income information on the noncustodial parent. There is always an opportunity for the people to ask for an administrative review, an internal review within the agency. If the people don't agree with the decisions made by CSED, they can go to a hearing officer in the Department of Revenue. If the people don't agree with the hearing officer, then they still may go to court, and the court may overturn the CSED order. That process happens in every single action the CSED takes. CHAIRMAN DYSON asked Ms. Miklos if HB 300 passes and the CSED wanted to go in and vacate the financial support order, and the custodial parents says, "I've changed my mind, I want you to put it in force," would that be retroactive or prospective. MS. MIKLOS said it would go from the date they applied for Medicaid. The custodial parent would be able to change his/her mind. That is the whole point of this bill that obligations and debt are mounting up. CHAIRMAN DYSON asked Ms. Miklos if the noncustodial parent is then liable for all those things covered in the "phony" financial support order. MS. MIKLOS answered yes, and that is one of the major reasons for this bill. It is a valid support order; the CSED is required by state law to tie the financial support order and the medical support order together when someone opens a Medicaid case. It is a real order, and the obligations continue to mount up. Another issue is when both parents agree they don't want this financial support, but the custodial parent goes on public assistance, the CSED will go back and collect the arrears. That is exactly why this bill is needed; the CSED doesn't want to be in the position of doing this when that was never the intent in the first place. Number 2116 MS. MIKLOS commented that this bill has no enemies, and everyone benefits from it. It is a debt that is accumulating, and at some point the CSED may have to go back and enforce it. REPRESENTATIVE COGHILL asked if a child has Denali KidCare insurance or Indian Health Insurance is that a requirement that will be put on the parent who should be paying. MS. MIKLOS said that in terms of Indian Health Insurance, that is one of the reasons the CSED does not have to do a medical support order. If there is already reasonable health care coverage for the child, the medical support order doesn't have to be enforced. It is not the paying parent that has to pay for anything having to do with Indian Health Service (IHS) It is the paying parent who would be responsible if there were no available, and the paying parent had reasonable health insurance available. REPRESENTATIVE COGHILL asked if Denali KidCare could be considered reasonable health insurance. Number 2214 MS. MIKLOS stated that Denali KidCare is not considered. The CSED is doing this so there will be less public money that goes into the case, so Denali KidCare is not counted as reasonable health coverage. Instead of having Denali KidCare or Medicaid cover the full cost of health care, the CSED is trying to find someone out there who has private money or private insurance to help balance out that cost. REPRESENTATIVE COGHILL suggested defining the health care as "private" health care in the bill. MS. MIKLOS clarified that the CSED can go after money; there is nothing in state or federal law that prohibits the CSED from doing that. It doesn't necessarily need to be a legislative change. The CSED has not done that very much. REPRESENTATIVE COGHILL said it seems like the CSED is trying to get the public-pay health care mandated for people by giving this proving ground that it can't find these people out here without health insurance or it seems like the proof goes to the easiest available insurance rather than what the parent's responsibility really is. Number 2315 MS. MIKLOS explained that for someone who is on Medicaid only-- not on public assistance--the medical support assists with Medicaid. That would help reduce the obligation or the liability if someone had medical support. The financial part of the order goes to the custodial parent. This isn't true if the custodial parent is on public assistance. If he/she is on public assistance, then the CSED collects everything on behalf of the state so the CSED is not in any way trying to reduce the money that is coming into the state. A custodial parent who said he/she doesn't want this, but the CSED is still trying to collect the medical insurance which will help medical assistance. In fact, the CSED has worked with the parents even more closely and thinks it will be able to increase those collections. It is true, separate from all this legislation, the CSED has not really aggressively gone after the private money; that could be done-- nothing prohibits that. There is no intent in this legislation to gear down the efforts. TAPE 00-35, SIDE B Number 2360 MS. MIKLOS said the reasons the CSED hasn't gone after the private pay is it doesn't have information that there is a lot of money out there. Many people who are on public assistance, the father or the obligee or the paying parent, also doesn't have very much money so there just isn't a lot of money. "I suppose if we found out that the paying parent is incredibly wealthy but didn't have insurance, we could go after that financial obligation for the medical insurance." REPRESENTATIVE COGHILL asked if the obligee doesn't have insurance and the custodial parent is on public assistance and getting Medicaid and/or Denali KidCare, what is the mechanism for charging. How do you go back to the obligee for that? Does that change the Medicaid or CHIP [Children's Health Insurance Program] Denali KidCare qualifications? Is this Medicaid CHIP money assessed back to the obligee and then does it change the qualifications for the person on assistance because of this order. MS. MIKLOS said that has not been done, but there is nothing in law that prohibits the CSED from doing that. It is more of a resource issue. She suggested that Diane Wendlandt could talk about the mechanism. CHAIRMAN DYSON asked if the amount the state can go after from the obligor is limited by the amount of the medical support order. MS. MIKLOS answered no, the medical support order does not speak to an amount right now so it wouldn't be limited. CHAIRMAN DYSON asked if the requirement in the medical support order is for insurance, the maximum of Denali KidCare would be about $150 per year, so would that be what CSED would go after the obligor for. MS. MIKLOS explained no, right now the CSED is going after the coverage, not after the money. CHAIRMAN DYSON said he was uncomfortable with the words "to require basic care coverage for the child" and he wanted to know why it wouldn't require basic health care for the child. It seems to him the use of the word coverage precludes the direct pay. Somewhere else it said an employee or group insurance program which seemed to him to unduly limit either the direct pay or a private insurance program. Number 2221 DIANE WENDLANDT, Assistant Attorney General, Collections and Support, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. She referred to the original question that has to do with the difference between requiring someone to provide insurance as opposed to making cash payments. Right now the focus of CSED is to assure that there is private insurance for the children, but that is not the only thing that CSED can or does do. Already in Civil Rule 90.3 and in most court orders now, there is a provision requiring parents, generally the noncustodial parent, to pay a portion of any unreimbursed health care costs. If there is no insurance, there is a requirement in the order that the parent pays basically cash whenever a child has medical expenses. That really addresses the issue of the cash. As the law stands currently, normally those expenses are split between the parents 50-50. Instead of ordering insurance, a payment could be ordered but the approach of Civil Rule 90.3 has been to focus on either getting the insurance or to require parents to pay once those expenses are incurred, rather than trying to say that expenses will be averaged per year, and this amount per year will be set on. That is not the approach that has been taken. CHAIRMAN DYSON asked Ms. Wendlandt why in the amendments it couldn't continue to say insurance, private, public, employer, or direct payment. MS. WENDLANDT said she didn't see any reason why it couldn't say that; it has not been included in this bill because there is a different purpose. This bill is trying to solve different problems. The CSED is focusing on an existing problem; the question of direct payments hasn't come up in the problem because it has been addressed in Civil Rule 90.3. That goes to the questions of having child support issues split between a court rule and statute. It has not been a problem given the provisions in Civil Rule 90.3 which are incorporated into most administrative orders. Number 1935 REPRESENTATIVE COGHILL asked if there would be a problem with inserting "private" when insurance is talked about throughout the bill. He suggested that on page 1, line 5, "private" be added so it read "private health care coverage" and that coverage could then be anything from a cash payment to an insurance policy. The reason he says "private" is to clear up the confusion he had. MS. MIKLOS said the "private" would include personal insurance as well as insurance through the employer. She asked Ms. Wendlandt if she sees any problems with adding the word "private" in the bill. Number 1864 MS. WENDLANDT answered no she does not. That issue has not come up in litigation. It has never been a problem explaining to the court that yes, in fact, the requirements for private health care insurance and that programs like Medicaid or Denali KidCare would not be considered other insurance to exempt a parent from providing some sort of private health care coverage. As far as she knows, the question of whether this is limited to employer has never come up. She doesn't think there would be any legal problem adding "private health care." MS. MIKLOS noted it wouldn't affect the court rule at all because the one amendment considered which would clarify this was a court rule change. The committee took an at-ease from 5:40 p.m. to 5:41 p.m. Number 1818 MS. MIKLOS noted this would only go into effect after they have already considered whether the child had adequate health care through the or other insurance coverage which would then be CHAMPUS [Civilian Health and Medical Program Uniformed Service] so then if the parents don't have that coverage then the CSED would be looking for some kind of private coverage. MS. WENDLANDT agreed that is correct. If it is initially determined that there is or CHAMPUS or something similar, she doesn't believe the CSED takes the next step of issuing a medical support order. REPRESENTATIVE COGHILL said it seemed to him that "we're saying Indian Health Services would be the first payer; and other insurance would be the other payer unless there was Denali KidCare who always says Indian Health Services is the last payer of resort. And then CHAMPUS and then the medical support order would then go to the parent. That parent would not necessarily be on any kind of assistance at that point, the medical order would go forward. If it could be satisfied by the state then is there an assessment on the obligor because of that. If private health care is going to be required as part of the support order, but we're always going to cave in at public pay first, is that an assessment that goes forward?" MS. MIKLOS said that Denali KidCare and Medicare are not included in the same category as and CHAMPUS. It is true that if someone is covered by or CHAMPUS, the CSED may not even do a medical support order. If they're not, then the CSED looks for a medical support from private health care. Number 1708 REPRESENTATIVE COGHILL said he understands that the health insurance carried by an employer or some private health insurance generally would be considered adequate as would the ability to pay. He asked if the public pay is considered adequate and has "adequate" been challenged by an irate parent. MS. MIKLOS said the whole purpose of this bill is for CSED to reimburse Medicaid so that Medicaid is not in any way considered the initial "adequate." It is only the other public ones like CHAMPUS. She doesn't know if there have been any challenges. One concern in terms of has been it is actually available to the child as opposed to someone who is eligible for and lives in New York, it may not do him/her any good. The CSED does look at that to determine if it is adequate. MS. WENDLANDT answered that she believes "adequate" has been challenged - not necessarily CSED's definition but in the context of a court action. She believes there have been a couple of cases where one parent has argued that was not adequate, and, therefore, one parent or the other should be required to provide private insurance, either because was not available in the area or because did not provide the special services to meet the special needs of the child, and private insurance would better meet the needs of the child. She is not aware of any ruling by CSED on that, but she believes courts have ruled on that. She knows of one case where the court agreed with the custodial parent that for special needs of the child, was not adequate and required the obligor to provide insurance because insurance was available to the obligor. Number 1574 CHAIRMAN DYSON suggested there may be some amendments forthcoming and he would try to bring this bill back up next week. [HB 300 was heard and held.] ADJOURNMENT Number 1502 There being no further business before the committee, the House Health, Education and Social Services Committee meeting was adjourned at 5:48 p.m.