Legislature(2013 - 2014)CAPITOL 106
02/25/2014 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 25, 2014
8:08 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Lynn Gattis
Representative Shelley Hughes
Representative Doug Isaacson
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
JIM POUND, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to a committee
substitute for HB 127, labeled 28-LS0088\G, Gardner, 2/13/14.
LINDA LORD-JENKINS, Ombudsman
Office of the Ombudsman
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
127.
BETH LEIBOWITZ, Assistant Ombudsman
Office of the Ombudsman
Juneau, Alaska
POSITION STATEMENT: Addressed changes made in the committee
substitute to HB 127, labeled 28-LS0088\G, Gardner, 2/13/14.
ACTION NARRATIVE
8:08:25 AM
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:08 a.m. Representatives Keller, Gattis,
Isaacson, Hughes, and Lynn were present at the call to order.
Representative Kreiss-Tomkins arrived as the meeting was in
progress.
HB 127-OMBUDSMAN
8:08:27 AM
CHAIR LYNN announced the only order of business was HOUSE BILL
NO. 127, "An Act clarifying that the Alaska Bar Association is
an agency for purposes of investigations by the ombudsman;
relating to compensation of the ombudsman and to employment of
staff by the ombudsman under personal service contracts;
providing that certain records of communications between the
ombudsman and an agency are not public records; relating to
disclosure by an agency to the ombudsman of communications
subject to attorney-client and attorney work-product privileges;
relating to informal and formal reports of opinions and
recommendations issued by the ombudsman; relating to the
privilege of the ombudsman not to testify and creating a
privilege under which the ombudsman is not required to disclose
certain documents; relating to procedures for procurement by the
ombudsman; relating to the definition of 'agency' for purposes
of the Ombudsman Act and providing jurisdiction of the ombudsman
over persons providing certain services to the state by
contract; and amending Rules 501 and 503, Alaska Rules of
Evidence."
8:09:14 AM
CHAIR LYNN reviewed that the House State Affairs Standing
Committee had heard HB 127 twice, in 2013, and appointed a
subcommittee. He emphasized the importance of having an
ombudsman in Alaska. He requested that Representative Keller,
as chair of the subcommittee to HB 127, give a report.
8:09:45 AM
REPRESENTATIVE KELLER opined that the law of the Office of the
Ombudsman is unique because it defines legislators. He talked
about the checks and balances put in place by the country's
Founding Fathers. He stated, "That's why we've made the three
branches of government. We've made a system that's pretty
inefficient and actually expensive, and it's all for the purpose
of making sure that government doesn't step on the liberties of
the people, of the governed." He said HB 127 is significant,
because the Office of the Ombudsman works for the legislature,
which has given the Office of the Ombudsman as much independence
and investigative powers possible. He emphasized that the
Office of the Ombudsman does not oversee; it investigates
complaints.
REPRESENTATIVE KELLER relayed his interest in the Office of the
Ombudsman began about ten years ago, and said he took some
elementary courses last summer, which he ventured would help him
explain and provide context to the important policy decisions
that must be made by the committee. He acknowledged
Representatives Gattis and Kreiss-Tomkins as the other two
subcommittee members. He said the subcommittee worked on a
proposed committee substitute, [labeled 28-LS0088\G, Gardner,
2/13/14], which he offered his understanding would be considered
by the committee today.
8:13:49 AM
REPRESENTATIVE KELLER directed attention to an [eight-page]
handout in the committee packet showing the Sections in statute
related to the Office of the Ombudsman. He went over it section
by section. He explained that AS 24.55.020 covers how an
ombudsman is appointed. The governor can veto an appointed
ombudsman; however, the legislature can override that veto with
a two-thirds vote. Next, he pointed out that AS 24.55.030 sets
forth the qualifications for the ombudsman and prohibition
against political activity; AS 24.55.040 sets the term of office
to five years, with a limit of three terms; and AS 24.55.050
explains how an ombudsman can be removed from office.
REPRESENTATIVE KELLER said AS 24.55.060 addresses compensation
of the ombudsman, and is the subject first addressed under HB
127, with a proposed change under the aforementioned committee
substitute [referred to as "Version G"]. Version G, he noted,
would add a new subsection (d) to AS 24.55.070, which addresses
staff and delegation.
8:16:33 AM
REPRESENTAIVE KELLER, in response to the Chair Lynn, offered his
understanding that Version G proposes a change to the step
increases for the ombudsman. In response to Representative
Hughes, he clarified his presentation was focused on existing
ombudsman law, which portions of it are addressed under HB 127,
and which portions of HB 127 would have proposed changes under
Version G. He reminded Representative Hughes that he is not the
bill sponsor, and emphasized his preference to have the current
ombudsman, Linda Lord-Jenkins, address specific questions. He
stated his intent to continue with an overview and allow his
staff to talk about proposed changes.
8:18:44 AM
REPRESENTATIVE KELLER returned to the handout and noted that
page 3 shows AS 24.55.090, which gives the ombudsman the power
to write regulations to set up the process through which the
Office of the Ombudsman handles complaints, and AS 24.55.100,
which addresses the jurisdiction of the Office of the Ombudsman.
He highlighted that AS 24.55.110 states that the ombudsman shall
investigate any complaint deemed appropriate under [AS
24.55.150], with six exceptions. He listed the first four: if
a remedy for the complaint is already available; if the
complaint resides outside the jurisdiction of the ombudsman; if
the complainant had knowledge of the act for an unreasonable
length of time; and if the complainant does not have a
sufficient personal interest in the subject matter of the
complaint.
8:20:53 AM
CHAIR LYNN asked to which branches of government the
investigative power applies.
8:21:13 AM
REPRESENTATIVE KELLER answered that there are restrictions on
what can be investigated in the judicial branch, but the
executive branch is definitely included. He stated, "As you
remember, the first part of the title of the original bill was a
clarification of whether or not the ombudsman has jurisdiction
over the Alaska Bar Association." He indicated that that was
taken out of Version G, and said "instrumentality of the state"
- which is what the Alaska Bar Association (ABA) is referred to
- is the same as an agency. He clarified that that does not
mean that the Office of the Ombudsman has jurisdiction over that
which the [Alaska] Supreme Court has jurisdiction; however, he
opined that it is in the best interest of the legislature to
maintain the responsibility and power it has on behalf of
Alaskans.
8:22:58 AM
REPRESENTATIVE KELLER returned to the handout and listed the
last two of the six exceptions: if the complaint is made in bad
faith and if the resources of the Office of the Ombudsman are
insufficient for adequate investigation. He said the latter
"comes right back on us," because the legislature is the
appropriator of funds and needs to know if there are complaints
that are not being handled because of a lack of funds.
Representative Keller noted that under AS 24.55.120, the
ombudsman can initiate an investigation.
8:23:27 AM
REPRESENTATIVE KELLER directed attention to page 4 of the
handout, to AS 24.55.130, which concerns a notice to a
complainant, and to AS 24.55.140, which addresses a notice to
the agency. He opined that there is good reason to require the
ombudsman to report to the legislature, because he/she works for
the legislature. He expressed concern that the legislators have
good interaction with the ombudsman.
REPRESENTATIVE KELLER next directed attention to AS 24.55.150,
which addresses appropriate subjects for investigation and read
as follows [original punctuation provided]:
Sec. 24.55.150. Appropriate subjects for
investigation.
(a) An appropriate subject for investigation by
the ombudsman is an administrative act of an agency
that the ombudsman has reason to believe might be
(1) contrary to law;
(2) unreasonable, unfair, oppressive, arbitrary,
capricious, an abuse of discretion, or unnecessarily
discriminatory, even though in accordance with law;
(3) based on a mistake of fact;
(4) based on improper or irrelevant grounds;
(5) unsupported by an adequate statement of
reasons;
(6) performed in an inefficient or discourteous
manner; or
(7) otherwise erroneous.
(b) The ombudsman may investigate to find an
appropriate remedy.
REPRESENTATIVE KELLER related that he and his staff could not
think of anything to add to the list, and he encouraged the
other committee members to look at it.
8:25:13 AM
REPRESENTATIVE KELLER turned to page 5 of the handout, to AS
24.55.160, subsections (a) and (b), which deal with
investigative procedures, and he said the aforementioned
committee substitute would propose a new subsection (c). He
brought attention to AS 24.55.170, on the handout, which
pertains to powers of the ombudsman. He pointed out that there
are only a couple states that have given the ombudsman so much
power. Alaska's ombudsman has the power to subpoena someone to
get information, which he opined is excellent. He said after
going to a convention, he thinks other states look up to
Alaska's legislation as a model.
8:26:25 AM
REPRESENTATIVE KELLER turned to page 6 of the handout, which
shows AS 24.55.190, 200, and 210. He said AS 24.55.190 relates
to the procedure after an investigation; it outlines the
reporting requirements of the ombudsman to the agency involved.
He said AS 24.55.200 has to do with publication of
recommendations. It gives the ombudsman the option to present
the opinion and recommendations given to the agency to "the
governor, the legislature, a grand jury, and/or the public."
Representative Keller ventured that that kind of transparency
"gives the ombudsman a lot of power."
REPRESENTATIVE KELLER turned to page 7 of the handout and
pointed out [AS 24.55.230], which requires the ombudsman to
submit an annual report. He said AS 24.55.240 relates to a
[judicial] review, and its purpose is to ensure that the law has
been followed. He noted that AS 24.55.250 pertains to the
immunity of the ombudsman.
REPRESENTATIVE KELLER said AS 24.55.260 relates to an
ombudsman's privilege not to testify, and Version G addresses
this section. He said AS 24.55.275 has to do with contract
procedures. He said the question is whether the ombudsman has
jurisdiction to investigate contractors for the state where the
money has gone indirectly to the contractors. He emphasized
that it is clear the legislative audit has jurisdiction over
contractors. He said he could provide legal memorandums, which
he reviewed.
REPRESENTATIVE KELLER directed attention to the definition of
"agency" under AS 24.55.330, shown on page 8 of the handout, and
he said Version G would add, within that definition, the word
"instrumentality".
8:30:11 AM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, stated that the subcommittee actually trimmed the
size of the proposed legislation. He said HB 127 would revise
the pay of the ombudsman by adding step increases. It would
expand how the ombudsman could protect attorney/client
privilege. It would update the procurement procedure, by
allowing it to change as necessary. He explained that it would
bring the ombudsman's procurement process into compliance with
that of the legislature. It would look at the growing trend of
privatization by permitting investigation into private
contractors, because technically those private contractors are
representing the state. He said the proposed legislation would
expand the authority of the ombudsman to review
instrumentalities of the state. He noted there are 121
references to instrumentality in statute.
8:32:02 AM
MR. POUND explained the changes that were drafted into Version G
and compared those with the original bill version. He indicated
that Version G would delete the clarifying language of the
Alaska Bar Association from Section 1 of the original bill. He
said, "That is taken up under 'instrumentality of the state'."
He indicated that language regarding confidentiality, which was
in Section 10 of the original bill, is addressed in Section 3 of
Version G. He noted that confidentiality is also covered under
regulation 21 AAC 10.200. He said Version G would delete
Section 6 of the original bill, which included "reporting
language" already "on the books" that can "also be handled by
regulation." He stated, "That goes all the way through
eliminating all of page 3 of from the bill, to include Section
300 complaints and responses, which are already in ...
regulatory language." He pointed to language added to statute,
shown within Section 11 [of the original bill version], and he
said, "That deals ... with the procurement situation." He
referred to a five percent preference [under AS 36.30.170(b),
which is referenced under Section 11], and he said, "That
language is already in the State of Alaska's legislative
language and is unnecessary in this bill; it's just
duplicative."
8:33:50 AM
REPRESENTATIVE ISAACSON questioned whether Section 11 in the
original bill version had become Section 5 [in Version G];
however, he later surmised that Section 11 had actually become
Section 7.
MR. POUND recommended that the ombudsman could better address
the details of Version G.
8:35:23 AM
REPRESENTATIVE KELLER apologized for not producing the committee
substitute for the committee members prior to today.
8:35:59 AM
MR. POUND ventured that Section 12 would probably elicit the
most discussion, because of the aforementioned topic of
instrumentality. He listed the following organizations that are
some of the instrumentalities in Alaska: the Alaska Medical
Facilities Authority, the Alaska State Housing Authority, the
Alaska Housing Finance Corporation, the Knik Arm Bridge and Toll
Authority, the Alaska Gasline Development Corporation, and the
Alaska Permanent Fund Corporation, among others. He indicated
that [the addition of "instrumentality" in Section 6, of Version
G, would solidify the ability of the ombudsman to investigate
instrumentalities. He said Section 13 of the original bill
addresses a service provided in [AS 24.55.330(2)], which was the
statute amended in Section 12, and he indicated the language
relates to "private contractors that are primarily dealing in
the custodial ... area of statute." He said Section 14 of the
original bill addresses an indirect court rule amendment, which
may or may not be needed, depending on how the courts may view
the inclusion of the Alaska Bar Association as an
instrumentality of the state.
8:38:03 AM
REPRESENTATIVE GATTIS, as a member of the subcommittee, said the
ombudsman needs to work for "us," and there was language in
statute that needed to be cleaned up in order to allow the
ombudsman to do that. She said she thinks the subcommittee made
the necessary changes, and she thinks [the committee substitute
that resulted] is a good piece of legislation.
8:39:25 AM
REPRESENTATIVE KREISS-TOMKINS, as a member of the subcommittee,
said it troubles him that he is seeing the committee substitute
for the first time right now. He said he appreciates good
intentions, but is in the same position as everyone else on the
committee in that he is reading the new language for the first
time.
8:39:55 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) for HB 127, Version 28-LS0088\G, Gardner,
2/13/14, as a work draft. There being no objection, Version G
was before the committee.
8:41:10 AM
LINDA LORD-JENKINS, Ombudsman, Office of The Ombudsman, thanked
Representatives Keller and Gattis for attending the United
States Ombudsman Association (USOA) Conference in Indianapolis
in the fall of 2013, and for doing some fact finding. She
indicated that she is in charge of new ombudsman training, and
Representative Keller was a student of hers and asked many
questions. She said the Office of the Ombudsman proposed HB 127
as clean-up legislation. She explained that the Office of the
Ombudsman was created in 1976, and there have been revisions to
statute in 1986 and again in 1990, but not since then. She said
the Office of the Ombudsman would not have bothered the
legislature with any one single issue, but the bill addresses
many issues, including a procurement revision.
8:43:39 AM
MS. LORD-JENKINS said Section 1 of Version G addresses the
compensation of the ombudsman. She continued as follows:
Under the United States Ombudsman Act's model acts and
standards USOA and the ombudsman -- International
Ombudsman Institute suggests that ombudsmen should
have a position in government where they can deal on
an equal power level with department heads, because
they are making suggestions often to department heads
on how to rectify problems that have been discovered
through ombudsman investigation.
MS. LORD-JENKINS said when the Office of the Ombudsman was
created in Alaska the ombudsman was compensated on a level with
a superior court judge. She said that compensation was reduced
in 1986 and locked in at a range 26 A. She said anyone that
works in the office does not get a merit step. She offered her
understanding from talking to Skiff Lobaugh, director of
Personnel, within the Legislative Affairs Agency, that the
ombudsman is currently the only position within state government
who is "not entitled to a consideration for the step increase."
She stated that whether or not "this section" would ever apply
to her, she thinks [a frozen compensation range] is
"fundamentally unfair to the position of the ombudsman.
MS. LORD-JENKINS said Section 2 addresses appointing staff to
the Office of the Ombudsman under personnel contracts. She
deferred to her assistant ombudsman to explain the need for this
provision.
8:45:36 AM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
stated that she is also an attorney; therefore, she tends to
consider statutory revisions related to the office. She said
the reason for Section 2 is that even though the Office of the
Ombudsman has been in the legislative branch, in some ways it
has been separated from other legislative personnel matters.
She explained that there have been many statute revisions over
the years dealing with legislative personnel, and the Office of
the Ombudsman has found itself to be in limbo - perceiving, but
not knowing for certain, that it has the ability to use "that
type of personal services contract."
8:46:33 AM
MS. LORD-JENKINS stated that Section 3 would add a subsection to
AS 24.55.160, which would address the Office of the Ombudsman's
access to attorney/client privileged information. She relayed
that when the Ombudsman's Act was enacted in 1976, the ombudsman
did have access to attorney/client privileged information;
however, that was revised in 1990 to exclude attorney/client
privileged information from the review of the Office of the
Ombudsman. She said this means that if the Department of Law is
asked for an opinion by a social worker and the social worker
acts on that attorney's advice, and the Office of the Ombudsman
receives a complaint about an action involved in that case, the
Office of the Ombudsman would not have access to "see what law
has advised the OCS social worker." She explained that means
that the Office of the Ombudsman cannot look at all the evidence
in a complaint that comes before it. She said although she is
not an attorney, her understanding is that "in large part, this
is because if privilege was waived as to the ombudsman, the
privilege is then considered waived as to any other entity."
She said, "This provision would ... allow us to review the
attorney/client privileged information or work product, but that
privilege ... would not allow anyone else involved in, say, a
lawsuit to look at that information."
8:48:18 AM
CHAIR LYNN asked for a hypothetical example.
8:48:31 AM
MS. LEIBOWITZ recollected a circumstance that occurred years
ago, involving a division within the [former] Department of
Community and Regional Affairs. She said there was a complaint
and the Office of the Ombudsman asked why the division did
something, to which the division replied it was told to do so by
its attorney. When the Office of the Ombudsman asked what the
attorney had said, the division said it could not give that
information to the ombudsman. Ms. Leibowitz said it probably
would have been to the division's advantage to relate what the
Department of Law told it, because "one of the things we will
give an agency a pass on is if they're acting on advice of
counsel, and that's the reason for their conduct." She added,
"But if they can't or won't show us, then we're left with
something that looks, frankly, unexplainable, and that is
reflected in our investigation."
CHAIR LYNN questioned how that would get reported without
compromising the attorney/client privilege.
8:49:50 AM
MS. LEIBOWITZ answered that the Office of the Ombudsman has had
agencies that have given "arguably privileged material to
explain it," and have so far not had a problem doing so.
However, she said some agencies say they cannot do that, which
can result in the Office of the Ombudsman concluding that "the
agency's action does not appear reasonable, because we do not
have a reasonable explanation." She said the Office of the
Ombudsman would like agencies to have the ability to explain
their reasons for doing things without having it result in
litigation with another party.
8:50:43 AM
REPRESENTATIVE GATTIS said she gets many requests regarding
issues related to the Office of Children's Services (OCS), where
the hands of the ombudsman are tied. She said she thinks
[Section 3 of Version G] would untie those hands and allow the
Office of the Ombudsman to do "the business that I think the
citizens of Alaska really deserve."
8:51:25 AM
MS. LORD-JENKINS related that there have been formal
investigations where the agency inadvertently provided the
Office of the Ombudsman attorney/client privileged information
that was "pivotal on at least one aspect of the investigation."
She said the Office of the Ombudsman does not release that
information publicly, because statute does not allow the office
to release confidential information; however, the Office of the
Ombudsman can incorporate that information into a confidential
version of the report that is provided to the agency so that the
agency understands what has happened. She said the Office of
the Ombudsman does provide that information to [the Department
of] Law, if appropriate, to let it know that the agency did not
follow its advice. She concluded, "But ... we don't release
confidential information in any respect, and we wouldn't release
attorney/client privileged information in any respect, so that
... is our practice."
8:52:31 AM
MS. LORD-JENKINS directed attention to Section 4(b) of Version
G, which would tighten up the Office of the Ombudsman's
confidentiality of records. She stated that when the
Ombudsman's Act was first enacted, the office relied on the
ombudsman's privilege not to testify in court to protect the
office's records. As the years have gone by, the Office of the
Ombudsman has protected its records, but has wanted that
provision "tightened up." Section 4(b) would keep the Office of
the Ombudsman's notes, drafts, and records obtained from an
individual or agency not releasable to the public. She said
this goes along with the strong confidentiality provisions of
the Office of the Ombudsman. She said those provision are core
to the ombudsman's institution.
8:53:28 AM
REPRESENTATIVE ISAACSON offered his interpretation of a letter
from North Star Behavioral Health (NSBH) [included in the
committee packet] was that the entity has the inherent benefit
of having an internal advocate to investigate and work with the
team to address concerns. He questioned what language in the
proposed committee substitute addressed the concern of North
Star Behavioral Health. He remarked that the legislature is
supposed to ensure that agencies being funded by the legislature
are using the funds appropriately. He asked Ms. Lord-Jenkins to
address the concern that having an ombudsman may interfere in
getting a client the best treatment.
8:55:47 AM
MS. LEIBOWITZ pointed out that the concerns of NSBH apply to
Section 6, which addresses contractors or grantees.
REPRESENTATIVE ISAACSON requested that his question be addressed
when the time came for discussion of Section 6.
8:57:01 AM
MS. LEIBOWITZ directed attention to Section 5 of Version G,
which deals with contract procedures. She explained that in a
past iteration of the procurement code, language was put into
statute related to the Office of the Ombudsman; the procurement
code "moved on," and the Office of the Ombudsman was "left with
what appears to be an anachronistic reference that caused us to
be the only legislative branch agency that would be making
procurement regulations tied to [AS] 36.30, rather than to the
legislative procurement policies that everyone else in the
legislative branch is using." She said Section 5 was designed
to put the Office of the Ombudsman back in the legislative
branch in terms of procurement.
8:57:59 AM
MS. LEIBOWITZ stated that Section 6 of Version G addresses two
issues. The first is the inclusion of "instrumentality" in the
definition of agency for the purpose of the Office of the
Ombudsman. She continued as follows:
Over the years, we have had no problem with asserting
jurisdiction with regard to University of Alaska or
Alaska Housing Finance Corporation or a number of
other entities, some of which are instrumentalities.
However, we have had a long-running ambiguity with
regard to the [Alaska] Bar Association, which looks
like an administrative agency in many respects, but is
defined only as an instrumentality and has generally
said that they are not within our jurisdiction.
MS. LEIBOWITZ said the Office of the Ombudsman has had a choice
over the years to either litigate a test case or ask the
legislature to resolve the issue one way or another, and it is
now asking the legislature to decide one way or the other.
MS. LEIBOWITZ said the second part of Section 6 of Version G
addresses the issue of agencies that have changed from public to
private. She explained that the Office of the Ombudsman cannot
supervise or investigate every contract or grant issued by the
State of Alaska; therefore, it has chosen those private entities
that fit a category of being a critical area over which the
ombudsman should have jurisdiction in spite of privatization.
She said the first on the list are adults in state custody. She
explained that while the Office of the Ombudsman may have
assisted an inmate in a state prison, that inmate may be
transferred to an out-of-state prison or half-way house where
the ombudsman has no jurisdiction. This is where the ombudsman
has seen the most need to remove the distinction between the
Department of Corrections and contractors. She said, "We've had
enough cases involving private facilities that we think there's
a demonstrated need in that area."
9:01:36 AM
CHAIR LYNN observed that the Office of the Ombudsman would be
working with the person in the facility, which is more important
than working with a facility.
MS. LEIBOWITZ responded that whether the complaint is merited or
not, if a person is an inmate, he/she is in state power. She
said the Office of the Ombudsman does not want its jurisdiction
limited because an inmate is in a state facility, whether or not
that state facility is located in or out of state.
9:02:32 AM
MS. LEIBOWITZ related that the next category is juveniles in
state custody. For example, minors in McLaughlin Youth Center
or Johnson Youth Center are clearly within the state's
jurisdiction. She said those facilities provide treatment, and
their orientation is more therapeutic than the adult facilities,
but they are state agency facilities. She said juveniles are in
a lower level of security; they are placed in one of many
facilities run by nonprofit organizations - "quasi-institutional
environments." She said the Office of the Ombudsman has asked
for jurisdiction over a certain set of facilities that deal with
those juveniles.
MS. LEIBOWITZ said the last category includes contractors or
grantees that determine eligibility for a state program or
benefit. For example, she said there are a couple of nonprofit
entities that are contracted to determine eligibility for
daycare assistance. She said, "If it's in an area where the
Division of Public Assistance is handling it directly, they can
bring us the complaint. If it's been contracted or put out to a
grantee for that same determination, then suddenly it's not
really within our jurisdiction." She said the Office of the
Ombudsman would like jurisdiction over any contractor or grantee
that is serving as "gatekeeper" to a state service. She said
the Office of the Ombudsman is amenable to letting the state
agency that made the contract or grant handle matters if it can;
however, it believes the office needs the option of having
direct jurisdiction if matters are not being handled.
9:05:23 AM
REPRESENTATIVE ISAACSON reiterated his question regarding
Section 6. He offered his understanding that NSBH is saying
that perhaps it is not constructive to have the Office of the
Ombudsman involved in its affairs. He asked the ombudsman for
justification for being directly involved.
9:07:08 AM
MS. LORD-JENKINS answered that the practice of the Office of the
Ombudsman, in most cases, is to route the complainant through
the available process; however, people still frequently feel
that the agency's action has not been fair, reasonable, or
consistent with its policies and procedures. It is at that
point, she explained, that the Office of the Ombudsman can look
at what the agency has done in response to an individual
complaint. She said that is how the office does most of its
work. She explained that with only 10 staff members, there is
not time to handle every complaint about all agencies.
MS. LORD-JENKINS shared one concern presented to her by the
Mental Health Board is that the Office of the Ombudsman would be
violating best practice standards by asking for this
[jurisdiction]; however, she said "this is not uncommon." She
said the ombudsman in Iowa and Nebraska both have the ability to
look at contractors for health and social service agency
services. She said they do not have statutory authority, but
they "follow the money." If a government agency pays a
contractor for a service that is being delivered on behalf of
the government agency, [the Office of the Ombudsman] has
jurisdiction. She said if the State of Alaska has a therapeutic
residential home that it can put a child in, then that child
would be subject to the jurisdiction of the ombudsman. She
asked, "If the State of Alaska does not have that home and
contract with the private entity to put a child in state
supervision in the custody of that entity, why do they then lose
their right to have the ombudsman oversight?"
REPRESENTATIVE ISAACSON opined that having the option to seek
out the Office of the Ombudsman when not satisfied with an
agency's process is important for individual, because it means
he/she has final recourse. He said all the agencies are good,
but some of them can get "siloed," and families can feel that
their voices have not been heard. He questioned what the
recourse would be for those families if not the Office of the
Ombudsman. He asked if they would have to go to court.
9:11:03 AM
MS. LORD-JENKINS responded that court review would be one
option. She offered her understanding that if a child has been
committed to the custody of the Department of Health and Social
Services (DHSS) and, with the agreement of the family, is put in
a residential home by DHSS, then presumably [the family] could
go to court and ask for some sort of oversight. However, one of
the reasons that the ombudsman exists in the United States is to
keep people out of court sometimes. It is often cheaper and
more expeditious to have the ombudsman look at a complaint. She
clarified, "We don't advocate for a complainant, nor do we
advocate for an agency; we take a complaint and we look to see
if an agency is acting in accordance with their statutes, their
regulations, their policies and procedures, best practices, and
if they are not, we make recommendations." She said in one
document she saw it was pointed out that the Office of the
Ombudsman does not have the power to enforce, but we make a good
argument for making a change in practice, either systemically or
for an individual complainant, if that's appropriate.
REPRESENTATIVE ISAACSON opined that it is important to keep
people out of court, be expeditious, and, through the annual
report, tell the legislature what changes might need to be made
to ensure best practices.
9:12:50 AM
REPRESENTATIVE HUGHES asked Ms. Lord-Jenkins why the Office of
the Ombudsman chose not to "follow the money." She then
questioned whether it thinks the legislation it is asking for
will cover its every need. Finally, she mentioned
attorney/client privileged information, and she asked if the
Office of the Ombudsman would have access to NSBH's
physician/client privileged information during an investigation.
9:14:05 AM
MS. LORD-JENKINS clarified that "follow the money" came from
Dayton, Ohio, where the ombudsman is a "classical" ombudsman,
similar to that in Alaska, Hawaii, Iowa, and Nebraska, and does
not have a lot of enabling legislation, which is why it uses the
"follow the money" standard. She said the Office of the
Ombudsman in Alaska prefers to have its jurisdiction set in
stone, "not unlike the ombudsman's standards, which were
referenced in the Mental Health Land Board's reaction/comments
... on our bill." She said the USOA recommends jurisdiction be
clear, not to the extent of excluding contractors, but to ensure
that the ombudsman does not extend past that jurisdiction. She
said when the Office of the Ombudsman was reviewing the proposed
legislation and considering whether it was appropriate to expand
its jurisdiction, it considered what points were more critical
to the wellbeing of people, and decided that, given its
resources, focusing its limited funds on the custodial aspect of
contractors that provide prison or residential treatment
services is more important than "a contractor that's hauling
gravel [and] broke somebody's windshield."
9:17:13 AM
REPRESENTATIVE HUGHES asked if the Office of the Ombudsman could
request an expansion of its jurisdiction in response to an event
it needed to address and if that expansion would then cover the
event retroactively.
MS. LORD-JENKINS said currently the Office of the Ombudsman has
the ability to look at what contractors do, but it is a
circuitous route. She offered an example, similar to an actual
incident, in which an inmate contacted the Office of the
Ombudsman and reported that he had slipped into a diabetic coma
the night before, and the cell mate called for help, but the
private contractor's employee did not respond for four hours.
In this situation, the Office of the Ombudsman could not call
[the contractor], but would have to tell the inmate to call the
Department of Corrections (DOC), and then the Office of the
Ombudsman would check to find out how DOC handled the complaint.
She said, "It took us a lot of time to look at that particular
issue, and we could only touch on it peripherally." She said if
the legislature decided it wanted the Office of the Ombudsman to
address an incident, it could probably enact legislation with
that directive. She mentioned that the legislature commissioned
someone to look at what is known as "Troopergate."
9:19:43 AM
MS. LEIBOWITZ, in response to Representative Hughes, said she is
not sure that a retroactive addition to the jurisdiction could
be made, but suggested Representative Hughes contact someone
from Legislative Legal and Research Services for advice.
MS. LORD-JENKINS, in response to Representative Hughes, said at
this point she is comfortable with [the language in Version G].
She related that in the last five to ten years, 25-27 percent of
the Office of the Ombudsman's caseload has come from the
Department of Health & Social Services, and about the same
number of cases has come from the Department of Corrections;
therefore, those are the big areas that the office is trying to
address. She added that they are the areas with a lot of
privatization.
9:22:06 AM
MS. LEIBOWITZ, in response to Representative Hughes, said the
Office of the Ombudsman has access to medical records produced
within a state agency or possessed by a state agency. She said,
"Our mandatory access to state agency records, whether
confidential or not, is pretty clear." She said like other
confidential information, the Office of the Ombudsman holds the
information and does not release it.
9:22:48 AM
REPRESENTATIVE ISAACSON indicated that Ms. Lord-Jenkins had
mentioned a letter from [the Alaska Mental Health Board and the
Advisory Board on Alcoholism and Drug Abuse], which addressed
unintended consequences related to giving the Office of the
Ombudsman jurisdiction over complaints about therapeutic foster
parents.
9:23:23 AM
MS. LEIBOWITZ offered her understanding of the request drafted
by the Office of the Ombudsman is that it tried hard "not to
pick up foster homes, therapeutic or otherwise." She said
residential child care facilities and residential psychiatric
treatment centers are defined in AS 47.32.900 and refer to an
entity staffed by employees. She offered her understanding that
therapeutic foster parents are not considered employees and that
a therapeutic foster home is not a residential child care
facility.
REPRESENTATIVE ISAACSON responded, "But they are being
reimbursed by the state, and therefore are gatekeepers of state
service."
MS. LEIBOWITZ said a foster home does not decide whether or not
a child will be placed there. She said an example of a
gatekeeping function is when contractors that provide prior
authorizations for Medicaid or employee health insurance decide
whether or not an employee gets to travel or have a procedure
covered.
REPRESENTATIVE ISAACSON said the natural parents of a child may
complain about the foster parents' treatment of a child, and
[under HB 127, Version G], the Office of the Ombudsman would
have to investigate that complaint.
MS. LEIBOWITZ responded that the Office of the Ombudsman made a
deliberate decision to focus on entities that are quasi-
institutional, and it does not think that foster parents are in
that category. She said the office does get complaints related
to foster parents, and it talks to a guardian ad litem (GAL), to
the OCS caseworker or to someone in the Division of Juvenile
Justice, to the parents, and to "licensing." She said she has
seen cases in which "licensing" conducts active investigations
where the licensing worker and, quite often, the OCS caseworker
go to the foster home for a visit. She said the Office of the
Ombudsman decided that it had neither the resources nor the need
to "go into that category." She concluded, "... We feel that
there is a qualitative distinction between a foster home and a
residential facility that is providing a less parental and more
institutional type of care for juveniles who are in custody."
REPRESENTATIVE ISAACSON said he anticipates from Ms. Leibowitz'
comment that the distinction would be specified in regulation.
MS. LEIBOWITZ replied that she thinks that is a reasonable
assumption and that some detailed regulations would be "in
order."
9:29:10 AM
REPRESENTATIVE ISAACSON noted that some mental health care
facilities had also expressed concern that the Office of the
Ombudsman had underestimated the cost of the proposed
legislation in the fiscal note and would not really have enough
funds to "dig into this section anyway." He asked how the
office thinks that without additional staff or funding it would
be able to do a good job related to the instrumentalities.
9:30:07 AM
MS. LORD-JENKINS answered that it has not been her practice to
ask for money when she does not have the numbers to back it up.
Conversely, when the Office of the Ombudsman has a sizeable
increase in its caseload, she will ask for the funds to address
that increase. She clarified that she thinks it would be "a
fool's errand" to ask for money in anticipation of what might
happen under the proposed legislation. She reiterated that if
she saw an increase in caseloads from that area of complaints
coming in, she would ask for more staff; however, she said that
at this point she does not have anything on which to base such a
request.
9:30:57 AM
CHAIR LYNN asked what the approximate caseload is today.
MS. LORD-JENKINS answered approximately 1,300 complaints;
however, she noted that in the first seven weeks of the year,
the Office of the Ombudsman is up 40 percent over cases last
year. The increase in 2013 was only 4 percent. She surmised
the higher increase in early 2014 "may be because of Goose Creek
[Correctional Center]."
9:31:29 AM
REPRESENTATIVE KREISS-TOMKINS asked how many complaints the
Office of the Ombudsman currently turns away that it would be
accepting under HB 127, Version G.
MS. LORD-JENKINS, in response to the use of the phrase "turn
away," prefaced her answer by giving an overview of the
complaint process. She said complaints come in the office via
phone, letters, and e-mail. The office assesses the complaint
to see if it has jurisdiction. If it does not, the office
routes the complainant to an appeal or grievance process. She
explained that in general, a complaint that is not
jurisdictional is one that is made against a private business or
the federal government or a municipal government. She reviewed
that jurisdictional complaints are those concerning a state
agency. For jurisdictional complaints, the Office of the
Ombudsman gets more information about that which the complainant
is unhappy. The office determines what program is involved and
takes a look at that program's policies and procedures, and it
educates the complainant about the program's appeal or grievance
process, if one exists. Using child support enforcement as an
example, she said the Office of the Ombudsman has a problem
resolution team to which it can route a complainant who is
unhappy over how his/her caseworker is handling the complaint.
She said some people might think of that as turning a
complainant away, but the Office of the Ombudsman is just
rerouting the complainant to the proper entity that, within the
agency's resources, may be able to solve or address the
complainant's problem. She said the complainant can return to
the Office of the Ombudsman if he/she feels the problem
resolution team has not solved the issue "adequately, fairly
reasonably, whatever." She concluded, "It's generally been
about 50/50, ... where we go beyond just education on those
complaints."
REPRESENTATIVE KREISS-TOMKINS clarified his previous question.
MS. LORD-JENKINS estimated that the complaints that are
currently not under the jurisdiction of the Office of the
Ombudsman that would become jurisdictional under HB 127, Version
G, are few. She said currently the office does not "get that
many complaints about that category - certainly the ... juvenile
justice aspect of ... complaints." She said when the Hudson
Correctional Facility was running and had 1,500 inmates, the
Office of the Ombudsman tracked the number of complaints, "but
it was maybe 7 percent of the complaints that we got in." She
said word spreads through a prison population quickly that if
someone calls the Office of the Ombudsman to complain about a
private prison and is turned away, he/she will not talk about
it; however, if the office can handle the complaint, finds merit
in it, and effects change, then "the word will spread." She
stated, "It's hard to really measure the need for this by the
number of cases that we would turn away, because right now we
turn them away, and so people don't see any success."
9:36:02 AM
CHAIR LYNN asked what the top two or three sources of complaints
are.
9:36:15 AM
MS. LORD-JENKINS answered now that Goose Creek Correctional
Center is running again, DOC - primarily its inmate population -
is the number one agency, accounting for 28-29 percent of the
complaints in 2014 thus far. Ranking second, she said, is DHSS,
which was running about 27 percent of the caseload last week.
She said of that, 16-18 percent of the complaints has come
against OCS. After that, she listed the following: the
Division of Public Assistance, the Child Support Services
Division, and sometimes the Division of Alaska State Troopers.
9:37:35 AM
REPRESENTATIVE HUGHES expressed concern that the Office of the
Ombudsman may be given access to mental health records, and she
asked how deep that access would go, and if the agencies would
have the ability to limit that access.
9:38:47 AM
MS. LORD-JENKINS responded that the presumption is that [under
HB 127, Version G], if the Office of the Ombudsman received a
complaint about a [mental] health care agency or OCS, that
complaint would be filed by either the parent or grandparent -
"somebody who has a reasonable personal interest in the
complaint." She said if the Office of the Ombudsman receives a
complaint from a neighbor who filed a report of harm and did not
believe it was acted upon, the office could not report back to
the neighbor, other than to say it believes the agency acted
reasonably or "we're looking at it, but we can't tell you under
the law what it is we've seen." She added, "So, we don't spread
the records around." She said the records of the Office of the
Ombudsman remain in its office; it does not share records that
it has obtained from the individual complainant with the agency
or vice versa. She said, "We don't serve as a conduit ... for
records to go transmitted back and forth from an agency to an
individual." She said the presumption would be that if someone
complained to the Office of the Ombudsman about an activity,
then that person has given the office permission to contact the
agency and look at the records in the agency. She said there
are some agencies that require a specific permission slip. The
Office of the Ombudsman has long contended that it does not need
to [provide a permission slip] because it has the authority to
access those records; however, on occasion complainants have
signed that document. She said one situation in which the
Office of the Ombudsman would have the complainant sign a waiver
would be if it was necessary to look at information that is held
in a private doctor's office in order to consider a
complainant's request for eligibility of some service. She said
there are 10 staff members in her office, all of which have
access to the caseload in the office. All individuals who work
in the Office of the Ombudsman are required to sign a
confidentiality statement; the Office of the Ombudsman is
required by law to keep its business confidential. She said
staff consults each other. For example, one of her staff
members is getting a master's degree in Public Health, so Ms.
Lord-Jenkins said she consults with that person on complaints
within that area of expertise.
9:42:09 AM
REPRESENTATIVE HUGHES opined it is good that the state agency
involved would not be receiving confidential information from
the Office of the Ombudsman. She expressed concern that a
person could come to the Office of the Ombudsman in an upset
state and not realize that the office had access to "what could
be volumes" of records. She said she thinks it would be
appropriate for the Office of the Ombudsman to make it part of
its process to have a specific discussion with the complainant
and perhaps even have the person sign acknowledgement that
he/she has been told what access the office will have to which
records.
MS. LORD-JENKINS said it is currently standard practice for the
Office of the Ombudsman to inform individuals about what its
investigative practice is. She said she thinks it would be
necessary to put into regulation the need for the Office of the
Ombudsman to "explain this to the individual." She said it
certainly would be proper in policies and procedures. Regarding
whether a complainant could control how much access the Office
of the Ombudsman has to his/her records, she explained that if
the office receives a complaint, the response depends upon the
nature of the complaint. For example, if parents are calling
and saying that an entity is not allowing them to have
visitation to their child, the Office of the Ombudsman would not
have to look at the records of all the children to investigate
that complaint; it would look at the appropriate information in
the child's file. For example, the therapist, based on years of
training and time spent with the child, may have recommended
that the parents not have access to the child. She said the
Office of the Ombudsman would not have to look at every note
written by the therapist or that was held in the residential
facility in order to make a decision.
REPRESENTATIVE HUGHES reiterated her concern about the
collection of private information. She asked if there could
ever be any information in the Ombudsman's report that reflected
that the office had access to the records that would not be in
that report otherwise. She asked if names are removed from the
report and if the individual has any say over whether the report
is presented publicly.
MS. LORD-JENKINS answered that the practice of the Office of the
Ombudsman is to post some formal investigations on line. She
continued as follows:
Those investigations are either redacted or, in some
few cases, if the complainant has given us permission,
then we would release their -- we would include that
on line. But we haven't done that in probably five
years; it's all -- anything we post on line is
redacted.
Medical information is confidential. Although we
would have access to review the medical information,
we don't ... give that information out to individuals
who don't have that access. The process would be: if
we have a complaint, like, say, ... against a
residential facility, we would ... write a report to
the residential facility, which has access to that
information; we would include in that report whatever
interviews we conducted with whoever we needed to talk
to; we would come to our conclusion and we would ...
notify the residential facility what the conclusion
was, based on all of that information. All of ...
that medical information would be -- if it's
classified, it's confidential information, and it's
not something that the agency would provide, and we
believe that fulfills statutory and regulatory
requirements, we would not provide that to -- ... we
would give that to the agency that knows all of this
information and needs to know what the basis of our
report is; but wouldn't go posting that on the
Internet or ... on a web site or even that level of
detail on our closing summary.
REPRESENTATIVE HUGHES asked Ms. Lord-Jenkins to confirm that if
a patient was bi-polar, for example, that information would not
be mentioned in any report that would go public, and that the
Office of the Ombudsman would use general terms that would not
reveal anything about the person's care and treatment.
MS. LORD-JENKINS confirmed that is correct. She stated that the
Office of the Ombudsman takes great steps to "blur everything."
She said this is an area in which the Office of the Ombudsman
has not handled that many complaints, but she said she has had
cases where she has not posted anything on line, even though the
information was "kind of out there in the community," because
the complainant had requested anonymity, and she did not want to
compromise that. In that case, she said, there was no way to
redact anything, so the agency got the response and the
complainant got the Ombudsman's findings, but nothing was posted
on line.
9:50:18 AM
REPRESENTATIVE KREISS-TOMKINS referred to a letter from Kate
Burkhart [the aforementioned letter from the Alaska Mental
Health Board and Advisory Board on Alcoholism and Drug Abuse]
and offered his understanding that "there may or may not be
clarity in the statute, as presented in the CS, whether
therapeutic foster parents would be subject to the jurisdiction
of the Ombudsman, but ... that jurisdictional question would be
resolved through regulation and therapeutic foster parents would
be excluded from the Ombudsman jurisdiction by regulation." He
asked if that is accurate.
9:51:03 AM
MS. LEIBOWITZ stated her understanding of HB 127, Version G, is
that therapeutic foster parents would not be included in the
jurisdiction of the Office of the Ombudsman. She added that it
was never the intention of the office to have that jurisdiction,
and she said the Office of the Ombudsman "tried very hard to get
statutory specificity on what we were going to pick up."
REPRESENTATIVE KREISS-TOMKINS referred to a portion of Ms.
Burkhart's letter, which read as follows [original punctuation
provided]:
Under SB 72, the Alaska Ombudsman seeks to broaden
jurisdiction to include non-governmental actions - by
"a person under a contract . . . with a state agency
to provide a juvenile detention facility, treatment
facility, or residential treatment program accepting
placement of juveniles committed to the custody of the
Department of Health and Social Services."
REPRESENTATIVE KREISS-TOMKINS asked, "How, to your mind, does
that exclude therapeutic foster parents?"
MS. LEIBOWITZ responded by citing the language in HB 127,
Version G, [page 3, lines 17-18], which read, "to provide a
residential child care facility or a residential psychiatric
treatment center as defined in AS 47.32.900". She said AS 47.32
is a Chapter addressing a variety of entities, including
assisted living homes and nursing facilities, but it also
includes a residential child care facility, which is defined as:
"a place staffed by employees where one or more children who are
apart from their parents receive 24-hour care on a continuing
basis." She opined that "staffed by employees" does not sound
like a therapeutic foster home. Further, she noted that under
AS 47.32, residential psychiatric treatment center is defined
as: "a secure or semi-secure facility or inpatient program in
another facility that provides, under the direction of
physician, psychiatric diagnostic evaluation and treatment
services on a 24-hour-a-day basis to children with severe
emotional or behavioral disorders."
REPRESENTATIVE KREISS-TOMKINS said he thinks his question
pertains to language on page 3, lines 15-17, of Version G, which
read, "to provide a juvenile correctional or detention facility,
home, or work camp as authorized by AS 47.14.010 - 47.14.050".
He reiterated his question regarding how the language would
exclude therapeutic foster parents.
9:54:55 AM
MS. LEIBOWITZ said AS 47.14 essentially deals with correction-
oriented placements for juveniles, and she said she does not
think the state currently has any private entities that are
providing that service.
REPRESENTATIVE KREISS-TOMKINS asked if "home" relates to those
entities in the correction and detentions world.
MS. LORD-JENKINS said that is her understanding. She stated
that AS 47.14 deals with the specific realm of placing juvenile
delinquents. She added, "It's more on the delinquent aspect
than it is on the therapeutic aspect."
9:56:08 AM
CHAIR LYNN noted there were seven people waiting to testify.
9:56:57 AM
MS. LEIBOWITZ, in response to the chair, said the basic points
had been covered. She said the Office of the Ombudsman thinks
the clean-up sections of the proposed legislation are essential
and asks that the legislature address the jurisdictional
questions. She commented on the length of time between requests
from the Office of the Ombudsman.
9:57:38 AM
CHAIR LYNN pointed out that people were available to testify
from the following agencies: the Alaska Mental Health Board and
Advisory Board on Alcoholism and Drug Abuse; the Alaska Bar
Association; the Mental Health Trust; the Department of Health
and Social Services (DHSS); North Star Behavioral Health; and
the Behavioral Health Association.
9:59:18 AM
CHAIR LYNN announced that HB 127 was held over.
10:00:16 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 10:00
a.m.