Legislature(2007 - 2008)SENATE FINANCE 532

02/06/2008 09:00 AM Senate FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 8 MENTAL HEALTH PATIENT RIGHTS:STAFF GENDER TELECONFERENCED
Heard & Held
+ SB 101 GUARDIANSHIP AND CONSERVATORS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  SENATE FINANCE COMMITTEE                                                                                      
                      February 6, 2008                                                                                          
                         9:05 a.m.                                                                                              
                                                                                                                                
CALL TO ORDER                                                                                                                 
                                                                                                                                
Co-Chair Stedman called the Senate  Finance Committee meeting                                                                   
to order at 9:05:19 AM.                                                                                                       
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Lyman Hoffman, Co-Chair                                                                                                 
Senator Bert Stedman, Co-Chair                                                                                                  
Senator Charlie Huggins, Vice-Chair                                                                                             
Senator Kim Elton                                                                                                               
Senator Donny Olson                                                                                                             
Senator Joe Thomas                                                                                                              
Senator Fred Dyson                                                                                                              
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
None                                                                                                                            
                                                                                                                                
ALSO PRESENT                                                                                                                  
                                                                                                                                
Senator Bettye Davis; Tom Obermeyer,  Staff to Senator Davis;                                                                   
Deborah Behr,  Chief Assistant Attorney General,  Legislation                                                                   
and Regulation  Section, Civil  Division, Department  of Law;                                                                   
Josh  Fink,  Public  Advocate,  Office  of  Public  Advocacy,                                                                   
Department of Administration                                                                                                    
                                                                                                                                
PRESENT VIA TELECONFERENCE                                                                                                    
                                                                                                                                
Faith  Myers,  Mental Health  Advocate,  Anchorage;  Dorrance                                                                   
Collins,  Mental  Health Advocate,  Anchorage;  Don  Roberts,                                                                   
Kodiak;  Ron   Adler,  Alaska   Psychiatric  Institute;   Pat                                                                   
Higgins, North Star Psychiatric; Pat Luby, AARP, Anchorage                                                                      
                                                                                                                                
SUMMARY                                                                                                                       
                                                                                                                                
SB 8      "An Act relating to a mental health patient's                                                                         
          right  to  choose  the  gender  of  hospital  staff                                                                   
          providing  intimate   care  to  the  mental  health                                                                   
          patient  and to  the  duties of  hospital staff  in                                                                   
          caring   for  patients   receiving  mental   health                                                                   
          treatment."                                                                                                           
          SB 8 was HEARD and HELD in Committee for further                                                                      
          consideration.                                                                                                        
                                                                                                                                
SB 101    "An   Act   relating    to   private   professional                                                                   
          conservators and private and public guardians."                                                                       
                                                                                                                                
          SB 101 was HEARD and HELD in Committee for further                                                                    
          consideration.                                                                                                        
                                                                                                                                
9:05:40 AM                                                                                                                    
                                                                                                                                
SENATE BILL NO. 8                                                                                                             
                                                                                                                                
     "An Act relating  to a mental health patient's  right to                                                                   
     choose the  gender of hospital staff  providing intimate                                                                   
     care to the  mental health patient and to  the duties of                                                                   
     hospital staff  in caring for patients  receiving mental                                                                   
     health treatment."                                                                                                         
                                                                                                                                
Co-Chair Hoffman  MOVED to ADOPT  CSSB 8, labeled  25-L010\E,                                                                   
Mischel, 2/4/08.                                                                                                                
                                                                                                                                
Co-Chair Stedman OBJECTED.                                                                                                      
                                                                                                                                
Co-Chair Stedman  summarized that CSSB  8 changes the  age of                                                                   
patient's  right to request  a care  provider by gender  from                                                                   
sixteen to  eighteen years  of age.  The bill, as  originally                                                                   
introduced, addressed  patients sixteen  years and  older but                                                                   
the Judiciary committee amended  it to eighteen years of age.                                                                   
                                                                                                                                
SENATOR  BETTYE DAVIS,  SPONSOR elaborated  on the  reasoning                                                                   
behind  the age  change. She  indicated  that patients  under                                                                   
eighteen years  of age usually  enter the mental  health care                                                                   
system through the Department  of Health and Social Services,                                                                   
parental  consent  or  other   professional  situations.  She                                                                   
considered  many  teenagers  (under  eighteen)  incapable  of                                                                   
making  mature  decisions  due  to their  past  emotional  or                                                                   
social experiences.  She indicated  many facilities  would be                                                                   
affected by this age change.                                                                                                    
                                                                                                                                
Co-Chair Stedman WITHDREW his OBJECTION.                                                                                        
                                                                                                                                
9:09:53 AM                                                                                                                    
                                                                                                                                
TOM  OBERMEYER, STAFF  TO SENATOR  BETTYE  DAVIS provided  an                                                                   
overview of SB  8 by reading the sponsor statement:  (copy on                                                                   
file)                                                                                                                           
     SB 8 provides  that a mental health patient  18 years of                                                                   
     age or  older who is  receiving mental health  treatment                                                                   
     and  being provided  intimate care  at a hospital  shall                                                                 
     have the right  to have care provided by  a staff member                                                                 
     who is  the gender  that the  patient requests.  Many of                                                                 
     these patients  have been  traumatized by sexual  and/or                                                                   
     physical abuse  in the past and they are  very sensitive                                                                   
     to  being  touched or  assisted  by hospital  staff  who                                                                   
     provide  intimate  care,   because  the  experience  may                                                                   
     trigger   from   original   abuse  feelings   of   fear,                                                                   
     helplessness, distress,  humiliation, and loss  of trust                                                                   
     in  staff.  The  supervisor  or manager  employed  by  a                                                                   
     hospital   shall  pot   notice  of   this  right   in  a                                                                   
     conspicuous  place, so patients  know they  may exercise                                                                   
     this  right when  they are  concerned  about the  gender                                                                   
     responsible for their personal intimate care.                                                                              
     While  it  is understandable  that  a hospital  may  not                                                                   
     always be able to comply  with the requirement of choice                                                                   
     of  gender  in  all  situations   and  requests  due  to                                                                   
     staffing  schedules and shortages  on particular  shifts                                                                   
     or  duty  units, the  bill  requires that  the  facility                                                                   
     document the  non-compliance in the patient  record that                                                                 
     the  intimate  care  was   provided  by  a  licensed  or                                                                   
     unlicensed  staff  member  of  a  gender  opposite  that                                                                   
     requested  by   the  patient.  This   information  might                                                                   
     otherwise  be ignored or  lost. The information  is also                                                                   
     useful not only for confirming  the good faith effort on                                                                   
     the part  of the institution  to comply with  the wishes                                                                   
     of  the patient,  but for  medical purposes  as well  in                                                                   
     evaluating  the  effect   on  patient  outcome,  because                                                                   
     individuals  re-traumatized in this  way are  subject to                                                                   
     chronic stress  which can worsen serious  mental illness                                                                   
     and  result in  symptomatic  relapses  and repeated  re-                                                                   
     hospitalizations.   Lastly,  this  bill   will  preserve                                                                   
     information  for inquiry  into  grievance procedures  at                                                                   
     mental  health facilities  under  Title  47, which  have                                                                   
     been described  as unduly  burdensome by some  patients,                                                                   
     and easily circumvented or  limited because the language                                                                   
     is too broad.                                                                                                              
                                                                                                                                
9:12:31 AM                                                                                                                    
                                                                                                                                
Mr.  Obermeyer reminded  the committee  that  this bill  only                                                                   
addresses  gender choice,  not grievance  procedures (SB  186                                                                   
"An  Act  relating  to  a  mental  health  patient  grievance                                                                   
procedure").  The  implementation  of the  bill  presents  no                                                                   
additional  costs, other  than  an additional  effort on  the                                                                   
part  of facilities  to accommodate  patient's requests.  Mr.                                                                   
Obermeyer noted  that it may  be impossible for  the facility                                                                   
to  accommodate  gender  choice   in  all  circumstances.  He                                                                   
maintained that  under such circumstances, the  facility only                                                                   
needs to  document the  occurrence and  provide what  care is                                                                   
possible.  It is the  belief of  numerous doctors and  nurses                                                                   
that this measure  will help reduce patient  trauma and avoid                                                                   
recidivism among the mental health population.                                                                                  
                                                                                                                                
9:13:25 AM                                                                                                                    
                                                                                                                                
Co-Chair  Stedman questioned  the rationale  of allowing  the                                                                   
patients, not the  hospital, to make the decisions  on gender                                                                   
care. Mr. Obermeyer remarked that  experience has proven that                                                                   
the  gender  choice  situations  are often  the  easiest  for                                                                   
hospitals  to ignore.  He stressed that  hospitals contain  a                                                                   
vulnerable,  often   involuntary  population,   without  much                                                                   
control  of  their  lives  once   institutionalized.  Lacking                                                                   
requirements,   the  institution   may   simply  follow   the                                                                   
procedure  that  works  best  for  them  over  the  patient's                                                                   
desires.  He clarified  that this did  not necessarily  imply                                                                   
patient  abuse, but in  situations where  patients have  been                                                                   
traumatized, it may not be evident  to the patients that they                                                                   
had the  power to file a  complaint. If there is  a procedure                                                                   
in place, posted  in a prominent place, the  patient would be                                                                   
better informed of their rights  to request a specific gender                                                                   
or staff member.  The entire point of the bill  is to protect                                                                   
the  vulnerable  patient  population  in  the  mental  health                                                                   
facility.  Co-Chair Stedman  questioned the  meaning of  line                                                                   
14, "if, after reasonable and  good faith efforts to comply."                                                                   
Mr. Obermeyer replied  that a "good faith" effort  means that                                                                   
the  hospital or  facility must  try  to accommodate  patient                                                                   
needs, but when  it is impossible, due to shift  or vacations                                                                   
schedules, it may  require a second person (of  the requested                                                                   
gender)  to be  in with  the patient  and  staff member.  The                                                                   
reasonable and  good faith effort  is a term  used throughout                                                                   
statutory language based on the normal course of business.                                                                      
                                                                                                                                
9:16:28 AM                                                                                                                    
                                                                                                                                
Senator Olson  questioned the consequences if  the good faith                                                                   
efforts are less than successful.  Mr. Obermeyer read page 2,                                                                   
line 1-8, that if the hospital is:                                                                                              
                                                                                                                                
     unable to comply with the  requirement under (a) of this                                                                   
     section,  (A)  document   in  the  patient  record  that                                                                   
     intimate care  was provided  by a licensed  staff member                                                                   
     of the  gender opposite to  the gender requested  by the                                                                   
     patient under (a) of this  section; or (B) if a licensed                                                                   
     staff  member  is  not  on  duty  at  the  time  of  the                                                                   
     patient's  request under (a)  of this section,  document                                                                   
     in the patient  record that the care was  provided by an                                                                   
     unlicensed staff  member of the gender opposite  to that                                                                   
     requested under (a) of this section.                                                                                       
                                                                                                                                
Mr. Obermeyer  explained the record of non-compliance  is not                                                                   
necessarily to hold the hospital  responsible, although there                                                                   
could be  instances where this  is necessary, but  to examine                                                                   
the patient  records for  the incident  date to follow-up  in                                                                   
cases of litigation or questions.                                                                                               
                                                                                                                                
9:18:06 AM                                                                                                                    
                                                                                                                                
Senator  Olson remarked  that there had  been discussions  in                                                                   
Bartlett  and Fairbanks  Memorial Hospitals  to address  such                                                                   
issues but  wondered how this  would affect other  hospitals,                                                                   
particularly rural  hospitals, which may be  understaffed and                                                                   
unable to comply.  Mr. Obermeyer reminded the  committee that                                                                   
the institution only  needs to document the  incident if they                                                                   
are  unable to  comply.  Senator Davis  added  that the  bill                                                                   
mentions licensed  and unlicensed  individuals, allowing  the                                                                   
institution to  provide the best  service possible  for them.                                                                   
An  alternative  way  to  provide the  service  could  be  to                                                                   
involve  the community  in  possible service.  Senator  Olson                                                                   
wondered if any rural hospitals  had given an opinion on this                                                                   
bill. Mr. Obermeyer responded  that he had not heard from any                                                                   
rural hospitals.                                                                                                                
                                                                                                                                
Senator  Olson  inquired on  the  effect  in the  very  small                                                                   
communities  in retaining  health  care  aids. Mr.  Obermeyer                                                                   
responded  that  the  language  of  the  bill  describes  the                                                                   
facility as  a hospital;  therefore smaller institutions  may                                                                   
not fall under this requirement.                                                                                                
                                                                                                                                
9:20:31 AM                                                                                                                    
                                                                                                                                
Senator  Thomas stressed  that the  most vulnerable  patients                                                                   
are the  younger ones.  He appreciated  that hospitals  often                                                                   
try to provide consistent gender  care but believed that more                                                                   
attention should be  paid to those younger and  more prone to                                                                   
possible abuse in an institution.                                                                                               
                                                                                                                                
Senator  Davis addressed  these concerns  by indicating  that                                                                   
younger children,  when they  are institutionalized,  usually                                                                   
have  other professional  support  working  to protect  their                                                                   
rights. She  maintained that those  adults eighteen  years of                                                                   
age and  older may not  have this kind  of protection  or the                                                                   
ability to ask for it.                                                                                                          
                                                                                                                                
Senator  Dyson encouraged  the passage  of this  bill in  its                                                                   
present form. He asserted that  personal privacy is important                                                                   
to  our  society  and  individuals   but  those  with  mental                                                                   
handicaps are  often prone to exploitation. He  believed that                                                                   
laws and  regulations were  important in assisting  patient's                                                                   
needs.  Senator  Dyson  also   stressed  that  a  significant                                                                   
percentage  of exploitation  involved same  sex and  possible                                                                   
exploiters often  obtain employment  in positions  caring for                                                                   
those they intend  to abuse. He maintained that  the State of                                                                   
Alaska  and the Legislature  are committed  to providing  and                                                                   
protecting personal privacy to  prevent further trauma in the                                                                   
lives of mental health patients.                                                                                                
                                                                                                                                
9:26:41 AM                                                                                                                    
                                                                                                                                
PATRICK  HIGGINS,  NORTH  STAR   BEHAVIORAL  HEALTH  SYSTEMS,                                                                   
appreciated the  Committee review  and consideration  of this                                                                   
bill.                                                                                                                           
                                                                                                                                
RON   ALDER,  DIRECTOR   OF  ALASKA   PSYCIATRIC   INSTITUTE,                                                                   
DEPARTMENT  OF  HEALTH  AND  SOCIAL  SERVICES  applauded  any                                                                   
effort to  protect the  vulnerability of the  psychiatrically                                                                   
disabled  population. He  asserted, as  a hospital  director,                                                                   
the numerous  flaws in  the proposed  legislation. Mr.  Alder                                                                   
observed  that  there  are  no United  States  laws  where  a                                                                   
legislature mandates  the documentation of  non-compliance in                                                                   
an accredited  hospital and  he was  concerned that  it would                                                                   
set  a precedent.  He  believed that  this  bill, for  public                                                                   
hospitals, should receive some  attention from the Department                                                                   
of  Law.  He remarked  that  the  proposed  legislation  also                                                                   
asserts  that  intimate care  only  be provided  by  licensed                                                                   
professionals.  Mr. Alder  referenced  the  Joint Mission  of                                                                   
Hospital Accreditation  Standards which states  that licensed                                                                   
professionals  are  not  required.  He  indicated  that  when                                                                   
intimate  care   is  required   at  the  Alaska   Psychiatric                                                                   
Institute  (API),   the  service   is  usually  provided   by                                                                   
unlicensed   psychiatric   nursing   assistants   under   the                                                                   
direction and  supervision of  a registered nurse.  Mr. Adler                                                                   
emphasized  that this  decision has  not been  a problem  and                                                                   
questioned  this   bill's  relevance  on  these   issues.  He                                                                   
maintained  that at the  API only  one patient complaint  had                                                                   
been  filed in  five  years which  resulted  in an  elaborate                                                                   
policy to cover this and future  issues. He also noted he was                                                                   
unaware  of any problems  at Bartlett  or Fairbanks  Memorial                                                                   
Hospitals. If the  intent behind this legislation  is to make                                                                   
sure that  there is  a "trauma-informed"  system of  care and                                                                   
that  the  overall direction  of  the  inpatient  psychiatric                                                                   
acute care  industry needs  to move in  the direction  of the                                                                   
more "trauma-informed"  system, then more  trauma assessments                                                                   
on   patients   were  needed,   not   necessarily   mandating                                                                   
legislation such as this.                                                                                                       
                                                                                                                                
9:31:37 AM                                                                                                                    
                                                                                                                                
Senator  Olson  questioned that  if  the  bill passed  and  a                                                                   
related  problem  occurred  at   API,  would  the  hospital's                                                                   
accreditation  be jeopardized.  Mr.  Adler  replied it  would                                                                   
not. He clarified that at API  an advocate already existed to                                                                   
attend to any patient complaints on an ongoing basis.                                                                           
                                                                                                                                
9:32:36 AM                                                                                                                    
                                                                                                                                
FAITH MYERS,  ANCHORAGE, supported  the passage of  the bill.                                                                   
She restated that SB 8 only asks  that psychiatric facilities                                                                   
try  and  make  a  "good  faith"   effort  at  providing  the                                                                   
patient's  gender  choice  for intimate  care  services.  She                                                                   
believed  that  a  callousness   or  apathy  can  develop  in                                                                   
institutions  and psychiatric  facilities. She asserted  that                                                                   
it is  the Statutes  and regulations  that protect  patients.                                                                   
The goals  of any legislation  should be to empower  patients                                                                   
to make decisions  that work toward their  recovery. Reducing                                                                   
recidivism and trauma to psychiatric  patients is the goal of                                                                   
SB 08. She strongly supports the passage of this bill.                                                                          
                                                                                                                                
9:34:40 AM                                                                                                                    
                                                                                                                                
DORRANCE COLLINS,  ANCHORAGE, supported the passage  of SB 8.                                                                   
Mr. Collins commented  that in a recent Alaska  Supreme Court                                                                   
decision, the  justices stated there was a  clear unavoidable                                                                   
tension  between  psychiatric  treatment  facilities  seeking                                                                   
convenience and  economics versus patient's rights  which can                                                                   
sometimes manifest  into patient  abuse. The justices  saw it                                                                   
as   a  given   that,   without  oversight,   no   reasonable                                                                   
expectation existed that patients  would be treated fairly or                                                                   
have their  rights protected.  Disability Law Center's  (DLC)                                                                   
opinion  stated  that patients  did  have  a legal  right  to                                                                   
privacy  and that  included issues  of  modesty. Mr.  Collins                                                                   
indicated that  the attorney  for PsychRights concurred  with                                                                   
Disability Law  Center's opinion  that between sixty  percent                                                                   
and ninety  percent of acute  care psychiatric  patients have                                                                   
been  sexually   or  physically  abused.  He   believed  that                                                                   
recovery   begins   with  allowing   patient's   to   protect                                                                   
themselves and take part in privacy  decisions. He maintained                                                                   
that  SB 08  only  asks that  psychiatric  facilities make  a                                                                   
"good faith"  effort to  accommodate patient's requests.  Mr.                                                                   
Collins advocated the passage of this bill.                                                                                     
                                                                                                                                
9:36:13 AM                                                                                                                    
                                                                                                                                
DON ROBERTS,  KODIAK, supported  the bill but  indicated that                                                                   
after listening  to the  comments, he  realized where  abuses                                                                   
could  occur on both  sides of  the issue.  He elaborated  by                                                                   
stating  that  this  law could  possibly  result  in  patient                                                                   
harassment of the staff. If the  law passes, he would like to                                                                   
see   legislative   or   institutional   follow-up   on   its                                                                   
effectiveness. Mr. Roberts continued  that he also recognizes                                                                   
a problem if  the facility could dismiss a  patient's request                                                                   
because of  inconvenience. He believed  that in the  issue of                                                                   
noncompliance,  more than a note  in the patient's  treatment                                                                   
folder  should  be  required.   Mr.  Roberts  suggested  that                                                                   
someone outside  the institution,  on behalf of  the patient,                                                                   
be informed when privacy requests were not met.                                                                                 
                                                                                                                                
9:38:28 AM                                                                                                                    
                                                                                                                                
Mr.  Obermeyer responded  to Mr.  Adler's concerns  regarding                                                                   
non-compliance in  the record. Mr. Obermeyer  referred to Mr.                                                                   
Alder's statement  that there should  be a Department  of Law                                                                   
opinion. He noted  that Mr. Adler made the  same statement in                                                                   
the committee notes  of April 2007, giving the  Department of                                                                   
Law time to respond if they saw  a problem. He mentioned that                                                                   
Senator  Davis  had addressed  a  "grievance"  procedure  (SB
186).  Mr. Obermeyer  noted Mr.  Roberts's  suggestion of  an                                                                   
outside  source being  informed  of patient  grievances.  Mr.                                                                   
Obermeyer  believed that  the Department  of Social  Services                                                                   
would receive and  screen complaints to evaluate  the need to                                                                   
be investigated. He suggested  that the fact that API has had                                                                   
only one patient complaint in  five years could be attributed                                                                   
to the lack  of a satisfactory  procedure in place to  file a                                                                   
complaint.                                                                                                                      
                                                                                                                                
9:41:04 AM                                                                                                                    
                                                                                                                                
Senator Davis  thanked the Committee for  their consideration                                                                   
of  the bill  and looked  forward to  having it  back on  the                                                                   
floor for later passage.                                                                                                        
                                                                                                                                
Senator  Thomas  referred  to  Page 2,  line  2-4,  regarding                                                                   
documentation,  and expressed his  hope that a  more thorough                                                                   
description  of  the  services be  mentioned.  Mr.  Obermeyer                                                                   
responded that  that the patient's  record is the  only thing                                                                   
required  to   be  retained  in  the  hospital.   Any  notes,                                                                   
comments,   or  suggestions  regarding   an  incident   would                                                                   
disappear once it was believed  the problem had been resolved                                                                   
at the lowest level. Mr. Obermeyer  indicated the information                                                                   
documented  in a patient's  record is  something that  can be                                                                   
retrieved later from  the State or an agency  or attorneys if                                                                   
they believed an abuse situation existed.                                                                                       
                                                                                                                                
9:42:37 AM                                                                                                                    
                                                                                                                                
Senator  Davis questioned  if  Senator Thomas  meant that  he                                                                   
believed more  should be  put in the  record other  than just                                                                   
documenting  that the  gender request  was not provided.  She                                                                   
assured  the   Senator  that   nurse's  and  doctor's   notes                                                                   
automatically  provide   more  detail  than  just   a  simple                                                                   
statement that the service was not provided.                                                                                    
                                                                                                                                
9:43:14 AM                                                                                                                    
                                                                                                                                
SB  8   was  heard   and  HELD   in  Committee  for   further                                                                   
consideration.                                                                                                                  
                                                                                                                                
9:44:00 AM                                                                                                                    
                                                                                                                                
SENATE BILL NO. 101                                                                                                           
                                                                                                                                
     "An Act relating to private professional conservators                                                                      
     and private and public guardians."                                                                                         
                                                                                                                                
9:44:24 AM                                                                                                                    
                                                                                                                                
DANA OWEN, STAFF TO SENATOR ELLIS  AND STAFF TO THE LABOR AND                                                                   
COMMERCE COMMITTEE, provided an  overview commenting that the                                                                   
Labor and Commerce  Committee introduced this  bill on behalf                                                                   
of the Office  of Public Advocacy. He deferred  to Josh Fink,                                                                   
from  the Office  of Public  Advocacy to  provide the  larger                                                                   
overview of  the bill. Mr. Owen  described the intent  of the                                                                   
bill  to encourage  more private  professional guardians  and                                                                   
conservators and  to insure these individuals  are adequately                                                                   
and appropriately  licensed. The bill  has been heard  in the                                                                   
Labor and  Commerce Committee twice.  It was returned  to the                                                                   
Committee  to  incorporate  a rather  large  amendment.  This                                                                   
amendment is  the Uniform  Adult Guardianship and  Protective                                                                   
Proceedings Jurisdiction  Act. This  act of legislation  aims                                                                   
to  standardize  cases  and  bring   order  to  questions  of                                                                   
interstate jurisdiction.                                                                                                        
                                                                                                                                
9:46:51 AM                                                                                                                    
                                                                                                                                
JOSH FINK,  DIRECTOR, OFFICE  OF PUBLIC ADVOCACY,  DEPARTMENT                                                                   
OF  ADMINISTRATION,  presented   an  overview  of  bill.  The                                                                   
legislature enacted  HB 280  in 2004, establishing  licensure                                                                   
and regulatory  oversight of  private professional  guardians                                                                   
and conservators.  Prior to the  enactment of the  bill there                                                                   
was no state  oversight of private guardians  or conservators                                                                   
in Alaska.  This bill  corrects some unintended  consequences                                                                   
of the 2004 bill. The hope of  the licensure bill would be to                                                                   
regulate   the   profession   by   screening   more   capable                                                                   
individuals  less likely  to exploit  those whose lives  they                                                                   
assisted.   Mr.  Fink believed  the bill  would regulate  the                                                                   
formally unregulated  industry  and hopefully encourage  more                                                                   
development  of the  industry  in Alaska.  Mr. Fink  revealed                                                                   
that  the bill,  as  written, established  some  impediments,                                                                   
such  as  requiring  multiple  licenses  entering  into  this                                                                   
business.  He explained  that to  provide full  guardianship,                                                                   
four licenses  were required.  This bill eliminates  the need                                                                   
for multiple licenses and establishes  an individual license.                                                                   
Mr. Fink  informed the  Committee that  this legislation  was                                                                   
drafted  with  input  from the  Office  of  Public  Advocacy,                                                                   
Occupational Licensing  and the Alaska State  Association for                                                                   
Guardianship.  This  bill  clarifies,  in Section  2  and  4,                                                                   
criminal  convictions  that would  disqualify  an  individual                                                                   
from  obtaining a  license.  The legislation  eliminates  the                                                                   
requirement that an applicant  provide "proof of the ability"                                                                   
to be bonded and  insured. Mr. Fink pointed out  that when an                                                                   
appointment  is made, the  court can require  that a  bond be                                                                   
posted by the  private guardian or conservator  on a case-by-                                                                   
case  determination.  It  also  establishes  that  an  annual                                                                   
report  include  total  fees  collected  from  the  protected                                                                   
persons, total business expenses,  and documents necessary to                                                                   
establish the  financial solvency  of the licensee.  The bill                                                                   
also directs  that an  annual report  be submitted  to Office                                                                   
Public Advocacy rather than Occupational Licensing.                                                                             
                                                                                                                                
9:52:08 AM                                                                                                                    
                                                                                                                                
Mr.  Fink  continued  that this  legislation  clarifies  that                                                                   
Occupational Licensing  may refuse to renew  a license and/or                                                                   
take disciplinary  action  if there is  a determination  that                                                                   
the   licensee  failed   to  meet   any   of  the   licensure                                                                   
requirements listed.  The legislation further  clarifies that                                                                   
financial institutions,  regulated by the  federal government                                                                   
under  the  Alaska  Statute  Title 6,  are  exempt  from  the                                                                   
licensing  requirements.   This  legislation   requires  that                                                                   
public guardians  of the Office  of Public Advocacy  pass the                                                                   
same criminal background checks  that are required of private                                                                   
professional   guardians  and   possess  the  same   national                                                                   
certification.  Mr. Fink mentioned  that amendments  added by                                                                   
Labor  and Commerce  Committee  eliminated  the  need for  an                                                                   
expert  evaluation to  determine  whether  the respondent  is                                                                   
incapacitated  if the  respondent  agrees  to the  protective                                                                   
appointment. The court must also  make written findings if it                                                                   
appoints  someone   of  lower  priority  as   a  guardian  or                                                                   
conservator. Mr.  Fink informed the committee  that currently                                                                   
in Statute  there  is a list  for the  order of  guardianship                                                                   
appointments.  SB  101 asks  the  courts  to a  make  written                                                                   
response as  to why the  court chose to  make an "out  of the                                                                   
order" appointment.  This legislation  would also  exempt the                                                                   
respondent  from  inspection  or  copying  under  the  Public                                                                   
Records   Act  unless   the  records   are  relevant   to  an                                                                   
investigation  or formal  proceeding. Mr.  Fink related  that                                                                   
there may  be some  concern involving  the exploitation  of a                                                                   
family  member  obtaining  private information  that  is  not                                                                   
required for  them to  know. Finally a  new amendment  in the                                                                   
bill would  allow  OPA to collect  its monthly  fee from  the                                                                   
respondent  awards  funds  held  at trust  in  OPA  prior  to                                                                   
distributing   the   funds   at  the   termination   of   the                                                                   
appointment.                                                                                                                    
                                                                                                                                
9:56:14 AM                                                                                                                    
                                                                                                                                
DEBORAH BEHR,  CHIEF ASSISTANT ATTORNEY GENERAL,  LEGISLATION                                                                   
AND  REGULATION SECTION,  CIVIL DIVISION,  DEPARTMENT OF  LAW                                                                   
and UNIFORM LAW COMMISSIONERS  OF ALASKA recommended adoption                                                                   
of the Uniform  Adult Guardianship and  Protective Proceeding                                                                   
Act, Section  24 to the  end of the  bill.  This  uniform act                                                                   
has had experts for years developing  a law that works across                                                                   
state  lines  dealing  with  the   difficulties  of  multiple                                                                   
guardians residing  in different  states. This bill  makes it                                                                   
easier  and less  expensive  for the  courts  to address  the                                                                   
transfer of  guardianship of  an incapacitated adult  between                                                                   
families residing  in different states should  the particular                                                                   
need  arise. This  would require  the  courts to  communicate                                                                   
with  each other  and  determine the  best  interests of  the                                                                   
incapacitated  adult. This  bill  is supported  by AARP,  the                                                                   
Department  of  Health  and  Social  Services,  the  National                                                                   
College  of  Probate  Judges and  the  National  Guardianship                                                                   
Foundation. The  bill has no fiscal  impact for the  State of                                                                   
Alaska. Ms. Behr recommends the passage of this bill.                                                                           
                                                                                                                                
9:59:13 AM                                                                                                                    
                                                                                                                                
Senator  Thomas questioned  why this  was not  a more  simple                                                                   
issue if it involved transfer  of guardianship between family                                                                   
members in different states.                                                                                                    
                                                                                                                                
10:00:43 AM                                                                                                                   
                                                                                                                                
Ms.  Behr  responded  that  in  the  past,  guardianship  and                                                                   
conservatorship  laws  responded  to  a  time  when  families                                                                   
traveled much  less but in this  time of higher  mobility, it                                                                   
must  be addressed.  The  process can  be  expensive for  the                                                                   
family  hiring lawyers  from different  states  to deal  with                                                                   
different courts.                                                                                                               
                                                                                                                                
Senator  Elton  inquired  about   how  the  criminal  history                                                                   
component  was   performed.  Mr.  Fink  responded   that  the                                                                   
applicant  is   required  to   submit  fingerprints   in  the                                                                   
application   process  and  the   Division  of   Occupational                                                                   
Licensing runs a  criminal history check to  confirm if there                                                                   
was a  criminal history  within  the prior  ten years of  the                                                                   
application. Senator Elton asked  who pays for the background                                                                   
check. Mr. Fink  responded that an application  fee, paid for                                                                   
by  the  applicant, covers  the  criminal  background  check.                                                                   
Senator Elton  inquired why  a private professional  guardian                                                                   
must be  licensed but an  appointed public guardian  or staff                                                                   
person, in Section 22, p. 10-11,  has a year before they must                                                                   
apply for  and receive certification.  He inquired  why there                                                                   
would be different criteria for  a private individual and for                                                                   
someone  who  works  for  OPA. Mr.  Fink  responded  that  an                                                                   
individual working  for OPA will  be supervised  and mentored                                                                   
for the year before they are certified.                                                                                         
                                                                                                                                
10:04:10 AM                                                                                                                   
                                                                                                                                
Senator Elton  indicated that on  page 20 it talks  about the                                                                   
registration  of guardianship  orders  and protective  orders                                                                   
between the different courts.  He asked for an explanation on                                                                   
how bonding works.  Senator Elton used the example  that if a                                                                   
guardian  who  is  appointed in  another  state  applies  for                                                                   
jurisdiction  within  Alaska,   could  the  State  of  Alaska                                                                   
require a bond of that person  or would that be the privilege                                                                   
of the originating court.                                                                                                       
                                                                                                                                
Ms.  Behr responded  that  if the  courts  decided where  the                                                                   
individual should  be, the other state guardianship  would be                                                                   
registered in the  original home place of the  individual and                                                                   
the other  court would  monitor any  transactions and  follow                                                                   
that state's law.                                                                                                               
                                                                                                                                
Senator  Elton clarified  that  it is  the originating  court                                                                   
that applied  the standards  that the  guardian must  follow.                                                                   
Ms.  Behr  affirmed  that  this  bill  does  not  change  the                                                                   
guardianship standards requirements  of being a guardian that                                                                   
is monitored by the other state.                                                                                                
                                                                                                                                
10:05:52 AM                                                                                                                   
                                                                                                                                
Senator  Dyson commented  on being encouraged  that this  was                                                                   
being  patterned on  the Uniform  Child Custody  Jurisdiction                                                                   
Act. The  transitory nature of  the Alaskan population  makes                                                                   
it important  that  mutually respected  procedures exist  for                                                                   
cross  jurisdictional issues.  He encouraged  the passage  of                                                                   
this bill.                                                                                                                      
                                                                                                                                
10:07:12 AM                                                                                                                   
                                                                                                                                
PAT LUBY, ADVOCACY  DIRECTOR, AARP, ANCHORAGE,  considered SB
8 to  be  excellent and  needed legislation  from a  consumer                                                                   
perspective. He maintained that  the growing older population                                                                   
in  Alaska  makes it  important  for  the State  to  exercise                                                                   
oversight over what will only become an expanding                                                                               
guardianship issue. The AARP encouraged support of this                                                                         
bill.                                                                                                                           
                                                                                                                                
10:08:06 AM                                                                                                                   
                                                                                                                                
SB 101 was heard and HELD in Committee for further                                                                              
consideration.                                                                                                                  
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
The meeting was adjourned at 10:09 AM                                                                                           
                                                                                                                                
                                                                                                                                

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