Legislature(1999 - 2000)
03/23/2000 03:03 PM House HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= 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.
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