Legislature(2001 - 2002)
03/04/2002 01:35 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE HEALTH, EDUCATION & SOCIAL SERVICES COMMITTEE
March 4, 2002
1:35 p.m.
MEMBERS PRESENT
Senator Lyda Green, Chair
Senator Gary Wilken
Senator Bettye Davis
MEMBERS ABSENT
Senator Loren Leman, Vice Chair
Senator Jerry Ward
COMMITTEE CALENDAR
SENATE BILL NO. 302
"An Act defining the term 'mental health professional' for the
purpose of statutes relating to the evaluation of prisoners who
may need psychological or psychiatric treatment, for the purpose
of statutes relating to the evaluation of children in need of aid
and delinquent minors who may need to be confined in a secure
residential psychiatric treatment center or who should be
released from such a center, for the purpose of statutes
requiring certain professionals to report the possibility that a
vulnerable adult has been abused or neglected, and for the
purpose of statutes relating to mental health civil commitments."
MOVED SB 302 OUT OF COMMITTEE
SENATE BILL NO. 295
"An Act relating to the disclosure of information regarding
delinquent minors to certain licensing agencies; and providing
for an effective date."
MOVED SB 295 OUT OF COMMITTEE
SENATE BILL NO. 342
"An Act relating to the long term care ombudsman."
HEARD AND HELD
SENATE BILL NO. 230
"An Act relating to recommending or refusing psychotropic drugs
as a treatment for children and to the evaluation and treatment
of children with behavioral or psychological problems."
HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 302 - No previous action to record.
SB 295 - No previous action to record.
SB 342 - No previous action to record.
SB 230 - No previous action to record.
WITNESS REGISTER
Mr. Jerry Burnett
Staff to Senator Green
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 256 for the sponsor
Dr. David McGuire
3418 Lakeside Dr.
Anchorage, AK
POSITION STATEMENT: Supports SB 256
Dr. Leonard Abel
Division of Mental Health & Developmental Disabilities
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Supports SB 302
Ms. Suzanne Price
Fairbanks Community Mental Health Center
Fairbanks, AK
POSITION STATEMENT: Supports SB 302
Ms. Sharon Bullock
Clinical Director
Fairbanks Community Mental Health Center
Fairbanks, AK
POSITION STATEMENT: Supports SB 302
Mr. Wayne McCollum
Fairbanks Community Mental Health Center
Fairbanks, AK
POSITION STATEMENT: Supports SB 302
Ms. Diane Weber
Director, Yukon-Koyukuk Mental Health
Galena, AK
POSITION STATEMENT: Supports SB 302
Ms. Anne Henry
Division of Mental Health & Disabilities
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Answered questions regarding SB 302
Ms. Wendy Hall
Staff to Senator Pete Kelly
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 295
Mr. Robert Buttcane
Division of Juvenile Justice
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Supports SB 295
Mr. Jeff Jessee, Executive Director
Alaska Mental Health Trust Authority
Department of Revenue
550 W 7th Ave., Ste. 1820
Anchorage AK 99501
POSITION STATEMENT: Supports SB 342
Ms. Laraine Derr
Alaska State Hospital & Nursing Home Assn.
426 Main St.
Juneau, AK 99801
POSITION STATEMENT: Expressed concerns about SB 342
Mr. Richard Benavides
Staff to Senator Davis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 230
Mr. Greg Maloney
Special Education
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Expressed concerns about SB 230
Mr. Richard Warner, President
Citizens Commission on Human Rights
Seattle, WA
POSITION STATEMENT: Supports SB 230
Mr. John Breeding, Director
Texans for Safe Education
No address provided
POSITION STATEMENT: Supports SB 230
Ms. Debbie Ossiander
Anchorage School Board
Municipality of Anchorage
PO Box 196650
Anchorage, AK 99519
POSITION STATEMENT: Supports SB 230 but expressed a concern.
Mr. Richard Rainery
Alaska Mental Health Board
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Supports SB 230 but expressed a concern
Mr. Frank Turney
PO Box 70392
Fairbanks, AK 99707
POSITION STATEMENT: Supports SB 230
Ms. Betty Rollins
PO Box 55163
North Pole, AK 99705
POSITION STATEMENT: Supports SB 230
Mr. Charles Rollins
PO Box 55163
North Pole, AK 99705
POSITION STATEMENT: Supports SB 230
Mr. Brock Eidsness
No address provided
Juneau, Alaska
POSITION STATEMENT: Supports SB 230
ACTION NARRATIVE
TAPE 02-15, SIDE A
Number 001
CHAIRWOMAN LYDA GREEN called the Senate Health, Education &
Social Services Committee meeting to order at 1:35 p.m. Present
were Senators Wilken, Davis and Green. The committee took up SB
256.
SB 256-CERTIFICATE OF NEED PROGRAM
MR. JERRY BURNETT, staff to Senator Lyda Green, sponsor of SB
256, informed members that a proposed committee substitute (CS)
is before the committee (Version O). The CS contains significant
changes to the original bill. He explained those changes to
members as follows.
· Section 1 provides that all nursing home and psychiatric
beds are subject to a certificate of need regardless of
their location in Alaska;
· It increases the threshold for a certificate of need to $2
million for facilities and $1 million for equipment but it
exempts communities with a population of more than 55,000
from certificate of need requirements for acute care
facilities;
· Section 2 removes a section in current law that only allows
for replacement of ambulatory-surgical facilities and
applies to smaller communities;
· Section 3 allows an exact replica of a facility to be built
on the same site without a certificate of need and defines
what is included in the $1 and $2 million thresholds. It
says a donation or transfer of equipment is also included
under the threshold for a certificate of need;
· Section 4 establishes a specific timeline for the
certificate of need process;
· Section 5 sets up a time limit for decisions;
· Section 6 puts all acute care, psychiatric and nursing home
beds under the same standards for review, which allows the
budgetary resources of the state to be considered;
· Sections 7, 8, 9, 10, 11 and 12 address technical changes
required by changes made in earlier sections of the bill;
· Section 13 contains moratorium language for certain
psychiatric beds (only those beds designated for children
and adolescents);
· Section 14 creates a working group to look at psychiatric
care services and the certificate of need program. The group
consists of 7 members: two providers of mental health
services, two mental health service consumers or their
parents or guardians; a physician whose primary practice is
not the provision of mental health services; an
administrator of a hospital who is not a provider of mental
health services; and the commissioner of DHSS or his/her
designee. This working group is tasked with looking at the
principles used to develop the state's psychiatric care
system and certificate of need process for psychiatric care
beds and to recommend changes to statutes and regulations
governing the certificate of need program to clarify the
standards applied during the application process.
SENATOR WARD moved to adopt Version O as the working document of
the committee. There being no objection, the motion carried.
CHAIRWOMAN GREEN called Dr. David McGuire to testify.
DR. DAVID MCGUIRE, an orthopedic surgeon practicing in Anchorage,
gave the following testimony.
I appreciate the opportunity to testify on this bill -
or the committee substitute and to discuss very briefly
with you the issue of certificate of need in general.
As most of you probably know, the certificate of need
was originally enacted by the United States government
during the Lyndon Johnson years in an effort to control
the cost of health care. The theory was that if there
were too many providers, all of the providers would be
duplicating services and they would all have to charge
more money for the duplication. Unfortunately, that
theory doesn't work in anything else that we know
about, and neither did it work in medicine.
By 1987 the federal government recognized that this was
not working and they repealed the law in its entirety.
Unfortunately, as is seemingly the habit of the federal
government, they had by then mandated that all states
adopt this legislation in order to be in compliance
with the Medicare-Medicaid regulations. But when the
federal government got rid of the certificate of need,
they left it entirely to the states. Many states have
gotten rid of the CON, others have modified it, and
some, like Alaska, have it pretty much intact from what
it was when it was first adopted.
It doesn't take much of a student of the scene to know
that medicine has changed dramatically in the last few
decades. The way we do medicine, the things that we can
do and the way that it's delivered is radically
different than what it was 20, 30 years ago. And so,
the problem is, that there are many kinds of procedures
that can be done better, quicker, cheaper in a setting
other than a traditional hospital setting.
Well, as of not too long ago, the hospital association
seemed to think the same way and they argued for the
repeal of the certificate of need. Since then they've
changed their opinion and they argue that having
surgery centers will cherry pick the patients. I don't
know how many patients really think of themselves as
being cherries to be picked, most of the time we think
that patients would want to have a choice and be able
to go where they want to go. They argue that having a
surgery center will undercut the revenue base of the
hospital and that it will in turn cause the hospital to
go broke or to rely upon public subsidies or something
of that nature. And even a superficial examination of
the situation in Anchorage, Fairbanks and, to some
extent, the Mat-Su, would lead you to rapidly different
conclusions. The hospitals, in fact, are doing quite
well. They have sufficient resources that they are
able to spend on any project they want. They build any
time they want and so I think the idea that they are
endangered is probably not a good one.
The certificate of need process, even if it were a good
idea to begin with, has now become subject to political
machinations to obfuscation to uncertainties as to who
needs and who doesn't need. The department determined
that a certificate of need was required in Fairbanks
for two ambulatory centers. Unfortunately, the
individual to whom this had been issued was not able to
complete in a timely fashion the building of those two
ambulatory operating rooms. The assumption would be
that since Fairbanks has grown, and since the needs are
greater, not less, that that same certificate of need
issued some six or seven years ago would still be
operant. But, we found upon application that the
commissioner was able to, in short order, request an
RFP for a study and the study was issued within 30 days
of the RFP and the study was required to report within
60 days its conclusions. Well, it came to Fairbanks
and studied the situation and came back with the
following recommendation - that there was only a need
for one ambulatory surgery room and that that being the
case, one was not economically viable and therefore
none were needed.
But, it's interesting to see how they did that study.
How they did it is they said that the operating room
that FMH was granted in the original CON that was given
to Dr. Odom (ph), FMH got one at the same time, that
was to be designated as an ambulatory operating room
where you can only count minutes in an ambulatory
operating room from 7 in the morning until 5 at night
because you don't do elective surgery at 3 in the
morning. So that gives you 5 days a week times from 7
to 5 and that's the number of minutes. But when they
came back to do the study, they lumped that in as an
acute care room and therefore you get to count 24-7 365
which is some 50 - 60 percent increase in the number of
operating room minutes and that's how the study
determined that no certificate of need is needed.
So my point, I guess, is it was a bad idea to begin
with and it never worked and hasn't worked and hasn't
worked anywhere else and it has become a process that
is highly, highly political and subject to
manipulation, is not fair, is not reasonable. To the
extent that the very small communities feel their
hospital care is threatened, this bill would exempt
them from any such threat. Communities like Homer,
Kenai, Juneau, etcetera would continue to live under
the same certificate of need that's been in existence
since it was first put on the books. But in larger
communities where there is a demonstrable need, in my
opinion, for competitive activities, the experiment
could be done without a disaster occurring to any of
the hospitals. For those reasons, I would urge your
consideration and support of this.
CHAIRWOMAN GREEN said at this time she will set aside SB 256 to
give members time to study it. She then took up SB 302.
SB 302-MENTAL HEALTH PROFESSIONALS
SENATOR WILKEN, sponsor of SB 302, explained that the measure
deals with an expansion of mental health providers. He then read
the following sponsor statement.
SB 302 recognizes the growth in the clinical, medical
health profession and broadens the mental health
professional definition to include: 1) a licensed
clinical social worker; 2) a licensed marital and
family therapist; and 3) a licensed professional
counselor. The current Title 47 definition was written
in 1986, prior to the passage of Alaska's licensing
requirements governing these master level mental health
clinicians.
The more inclusive mental health professional
definition increases the capacity of Alaska's mental
health system to protect our youth and adult who are
experiencing acute psychiatric crises in our
communities. Today not enough mental health
professionals are authorized under the current
definition to respond to some critical public safety
situations, particularly in rural Alaska. And yet
there are hundreds of licensed professionals who are
qualified to aid these Alaskans but cannot.
SB 302 recognizes this problem and updates the Title 47
definition. The expanded mental health professional
definition, as stated in SB 302, increases the number
of trained professionals who will be: 1) allowed to
provide mental health treatment for prisoners; 2)
authorized to evaluate children and minors in custody
to determine placement in residential treatment
centers; 3) required to report incidents of harm to
vulnerable adults; and 4) allowed to conduct civil
commitment evaluation.
SENATOR WILKEN referred members to the bill's zero fiscal note
and a chart in members' packets that compares the training
requirements for mental health providers in Alaska. He noted that
members' packets also contain about 12 letters of support. He
offered to answer questions.
CHAIRWOMAN GREEN announced that Senators Davis, Ward, Wilken,
Leman were present.
DR. LEONARD ABEL, manager of the Community Mental Health Services
Program at the Department of Health and Social Services (DHSS),
informed members one of the top priority programs in his unit is
psychiatric emergency services. That is what SB 302 is about, and
its passage is very important. Currently, on any given day,
psychiatric emergency services happen in 32 catchment areas
around the state, delivered by about 140 mental health
professionals. Any time - day or night - a psychiatric emergency
occurs, those professionals go out, assess the individual to
determine the presence or absence of a mental illness, and
whether that illness will endanger self or others. Right now,
there are not enough people who meet the current statutory
definition to deliver that service; only physicians, licensed
psychologists and psychological associates or MSWs with two years
of experience are able to. When that definition was put in place,
there was no social work licensing law. It appears that the
intent at the time was to cover everyone who was practicing.
Now, social workers, marriage and family therapists and
professional counselors are licensed. A client must be sent to a
hospital, if the mental health provider does not fall within the
definition, he or she cannot file an ex parte order, the normal
procedure. As a result, providers must be very creative and
usually rely on 7 AAC 47.705, the order for emergency evaluation,
commonly known as the peace officer's application. They must ask
a VPSO or trooper to assess the client, even though the mental
health provider has a master's degree in their field. The problem
is that to use the emergency evaluation, the situation must be
imminently dangerous. If the VPSO does not see a gun in the
person's hand or a bottle of pills, they will not be shipped out.
The standard is much higher.
DR. ABEL referred to the chart provided by Senator Wilken and
noted that under practice definitions, psychologists,
psychological associates, clinical social workers, marriage and
family therapists and licensed professional counselors can
diagnose and treat. Diagnosis is the essential feature of
emergency services. The definition in AS 47.30.915 pertains
specifically to the commitment process but it is referenced in
other areas of statute, one being under the requirements for
reporting on vulnerable adults. Therefore, marriage and family
therapists and professional counselors are not required to
report. Changing this definition would automatically require them
to report. Also, AS 47.30.915 is referenced in statutes related
to placement of children in juvenile detention facilities. This
bill would allow more professionals to make those assessments.
Finally, the statutes referring to adults in correctional
facilities references the same statute so the definition change
would also affect that group of people. He urged members to pass
the bill.
CHAIRWOMAN GREEN asked Dr. Abel if there is anything about the
legislation that makes him uneasy about authorizing a mental
health provider to do something for which he or she is not
qualified.
DR. ABEL said there is not because they are all qualified to do
essential emergency assessment.
CHAIRWOMAN GREEN asked if there are continuing education
requirements for mental health providers.
DR. ABEL said there are; to the best of his knowledge all
professions must pass a qualifying examination and have
professional references.
CHAIRWOMAN GREEN asked if providers who refer a person on for
emergency treatment are trained adequately and regularly with
continuing education courses.
DR. ABEL said the answer lies somewhere in between. Assessment
for emergency treatment is a standard part of training but it is
not a major part unless it is the provider's specialty area. For
example, all physicians have standard training in surgery but are
not necessarily surgeons.
CHAIRWOMAN GREEN asked if the passage of SB 302 would prompt
additional coursework.
2:01 p.m.
DR. ABEL said the division is looking at ensuring that everyone
will get training and be made familiar with the commitment
process. The division does that on an ongoing basis anyway but
if the bill passes, it would make another effort.
SENATOR LEMAN said that according to the chart no professional
references are required for family and marital therapists, while
they are for all other providers. He asked if that was an
oversight.
DR. ABEL said it was an oversight that was taken care of in the
licensing regulations.
SENATOR LEMAN said he is aware of another situation in which a
requirement was put in regulation that required something without
statutory authority. He asked if someone could refuse to provide
references because they are not required by statute.
DR. ABEL said he was not sure he could answer that question.
SENATOR LEMAN said if it is true, that could be fixed in this
piece of legislation, especially if it is not controversial.
CHAIRWOMAN GREEN took public testimony.
MS. SUZANNE PRICE, Fairbanks Community Mental Health Center, said
she has been involved in the mental health field for almost 30
years, and in Alaska since 1986. In 1986, almost every mental
health center had a licensed psychologist, and sometimes two.
She cannot think of one mental health center today that is
operated by or with a licensed psychologist. Most workers are
Masters level MSWs, marital and family therapists, and
professional counselors. She is one of a few psychological
associates. The changing patterns of who is working in the field
have been enormous over the last 15 years. Fifteen years ago, all
case managers had Masters level degrees; now they have bachelors
degrees while supervisors have masters level degrees. As the
profession evolves and changes and the licensing requirements
change, the statues and regulations need to change. She is
finding it very difficult to provide enough services with the
available manpower.
MS. SHARON BULLOCK, clinical director of the Fairbanks Community
Mental Health Center, agreed that the mental health field has
changed over the last 15 years. SB 302 would allow a wider range
of people to do emergency assessments. However, a community
mental health center often employs people fresh out of college
with a masters degree therefore 24-months is a bit long to wait
before that person can perform that duty. All employees are
under the supervision of a licensed clinical employee anyway. She
supports SB 302 but hopes the 24-month requirement can be changed
to 12 months. Her center has a difficult time retaining employees
because by the time they get the two years in, they move on.
MR. WAYNE MCCOLLUM, community support program director for the
Fairbanks Community Mental Health Center, expressed concern about
the licensed staff shortage problem in Alaska. He said that
trying to recruit clinicians for the Bush is very difficult
because the wages are not very competitive so they end up with
people without the kinds of degrees needed to meet the existing
regulations.
MS. DIANE WEBER, director of the Yukon-Koyukuk Mental Health in
Galena, which represents six villages off of the road system and
in very rural areas, voiced support for SB 302. The bill is
important to her region because under the current statute, her
clinic is required to have a clinician with a Ph.D. or a MSW to
do an emergency commitment and there are none in her region. That
means that civil commitment is nearly impossible. In addition,
the health center is unable to use police officers to do
commitments. There are no police officers in her only area and
only two troopers cover a region the size of Israel. The troopers
are too busy with other duties. An additional problem is that
people need a psychological evaluation before her center can
access the Division of Mental Health's transfer system to
transport them to a hospital. She agreed it is very difficult to
get a mental health professional with a master's degree to take a
job in the Bush, let alone one who is licensed. She said the
process of supervision for licensing is thorough and requires
authorization by a licensing board. Her final point was that
assessment for lethality for suicide is not a terribly complex
procedure and anyone with a master's degree in a mental health
field is capable of doing that. Passing SB 302 will help to save
lives.
2:13 p.m.
MS. ANNE HENRY, Division of Mental Health and Developmental
Disabilities, explained that in answer to a question by Senator
Leman, the requirement for references for psychologists and
psychological associates is also in regulation rather than
statute. She said the error on the chart was on oversight on her
part but noted that placing that requirement in regulation is not
unusual.
SENATOR LEMAN said in that case, the committee probably does not
need to make any changes.
CHAIRWOMAN GREEN suggested waiting for the sunset legislation for
those professions to put the requirement in statute.
MS. HENRY then said, regarding the request to reduce the time of
experience from 24 to 12 months, the 24 month requirement is in
current statute as it defines what significant experience is in
the field of mental illness for social workers who are allowed to
do this work.
CHAIRWOMAN GREEN asked, "So, I mean, we're sort of bound by the
current statute to leave it - consistent with here?"
MS. HENRY said if the committee chooses to reduce the time of
experience to 12 months, the division would be comfortable with
that change as it would open up access to a few more folks to do
this work.
SENATOR WILKEN said he would look into whether or not to reduce
the time of experience to 12 months and bring it up to the next
committee.
SENATOR LEMAN moved SB 302 from committee with individual
recommendations and its accompanying zero fiscal note. There
being no objection, the motion carried.
CHAIRWOMAN GREEN announced the committee would take up SB 295.
SB 295-LICENSING:DISCLOSURE OF MINORS RECORDS
MS. WENDY HALL, staff to Senator Pete Kelly, sponsor of SB 295,
explained that this measure addresses a concern within the
Department of Health and Social Services. State and federal laws
require all child and adult day care licensing authorities to
review criminal history reports of every individual aged 16 and
older who is seeking either a care license, employment with the
care provider, or residing in the home of a care provider seeking
licensure. Current law does not explicitly authorize release of
delinquency information when a juvenile is 16 or 17 years of age
and is residing in the home where care services will be provided
and the juvenile will not be an employee of the license holder.
Therefore, the state is requiring the licensing authorities to
review the criminal background of anyone living in the home, yet
the department is unable to release that information unless that
individual will be an employee. SB 295 will authorize DHSS to
release that information so that a scenario does not arise in
which an applicant is given a license even though an adolescent
who is a convicted child molester is living in the home.
CHAIRWOMAN GREEN asked if SB 295 only pertains to minors since
similar legislation was enacted that applies to adults.
MS. HALL said that is correct.
MR. ROBERT BUTTCANE, Juvenile Probation Officer at DHSS, stated
that over the past few years, various state and federal laws have
been enacted that require licensing agencies to access
delinquency records information as part of their license review
process. As the Department of Education and Early Development
(DOEED) was working on procedures to license child daycare
centers in Alaska, DHSS was unclear about its authority to give
DOEED information about juveniles who reside in the home of the
day care license applicant but are not employees. In some
situations, those juveniles have delinquency records that brought
into question the safety of providing services in that home. DHSS
worked with the Department of Law and Senator Kelly and came up
with SB 295, which adds a section to DHSS's confidentiality laws
that gives explicit authority to release that information to care
providers, whether for senior care, foster care, or child care.
He stated support for SB 295.
2:22 p.m.
SENATOR WARD asked if this came about because of an applicant who
had a dangerous youth living at the home.
MR. BUTTCANE said it did not actually happen but the scenario was
raised. DHSS was able to construct a strong enough justification
to release the information to DOEED, according to the assistant
attorney general.
TAPE 02-16, SIDE B
CHAIRWOMAN GREEN asked if criminal background information can be
accessed on other adults living in the home.
MR. BUTTCANE said the information contained in APSIN (the Alaska
Public Safety Information Network) for all adult criminal history
records is available to licensing agencies now by statute. SB 295
is specific to delinquents because that authority is missing.
SENATOR WARD asked if an applicant must disclose anything that
might be dangerous to clients on the application.
MR. BUTTCANE said he is not familiar with every licensing
application process, but on some that is a requirement.
Applicants sign authorizations for the licensing agency to check
APSIN so that if the information is not disclosed on the
application, it would be available in APSIN.
CHAIRWOMAN GREEN acknowledged that in the case of juveniles,
agencies cannot access that information. She noted she has no
problem moving this bill to the Judiciary Committee where it can
address infringement issues.
SENATOR LEMAN moved SB 295 from committee with individual
recommendations and its accompanying zero fiscal note. There
being no objection, the motion carried.
The committee took up SB 342.
SB 342-LONG TERM CARE OMBUDSMAN
MR. JERRY BURNETT, staff to Senator Green, sponsor of SB 342,
explained that SB 342 clarifies the duties of the long term care
ombudsman and increases some statutory authority. He gave the
following testimony.
Each state is required to have a long term care
ombudsman under the Older Americans Act (OAA). Alaska's
long term care ombudsman is located in the [Alaska]
Mental Health Trust Authority and recently the long
term care ombudsman resigned, citing as one of the
reasons for his resignation, frustration with Alaska's
statutes. Discussion with the executive director of
the Alaska Mental Health Trust led to the filing of SB
342, which brings Alaska statutes in line with the
federal law.
Specifically, SB 342 directs the long term care
ombudsman to visit long term care facilities and
identify problems, rather than assuming the more
passive role of only responding to complaints. It
provides that no long term care facility may deny
immediate access to an employee or volunteer from the
long term care ombudsman's office who is responding to
a complaint and it gives the long term care ombudsman
an active role in developing and providing technical
support to volunteer organizations which are interested
in the health, safety, welfare and rights of older
Alaskans.
CHAIRWOMAN GREEN asked Mr. Burnett to address the question of why
this issue is being revisited.
MR. BURNETT said, according to the executive director of AMHTA,
state statutes have not been brought up to date and are not in
compliance with federal law so there are tasks the long term care
ombudsman should be directed to do which he or she is not.
SENATOR LEMAN asked if the subsections in Section 3 will respond
to changes in federal law.
MR. BURNETT said he is not sure whether they respond to changes
in federal law or to the existing federal law. He noted the
development of the volunteer organizations and family councils,
etcetera, is specified.
CHAIRWOMAN GREEN said that sounds like an iteration of the
federal statute.
MR. BURNETT added that the long term care ombudsman is funded
with a combination of state and federal money. This bill should
not affect those funds.
SENATOR LEMAN referred to subsection (f) and asked what
"technical support" means in this context.
MR. JEFF JESSEE, Executive Director of the AMHTA, explained that
a little over a year ago, the AMHTA took over the job of
overseeing the office of the long term care ombudsman. During
that process he reviewed the framework under which the office
operated and identified discrepancies between the federal and
state laws. Section 3 of SB 295 contains a number of functions
the long term care ombudsman should be undertaking that are not
required in state law. The formation of resident and family
councils will assist folks who either live in or have family
members in long term care facilities to organize themselves so
they aren't dependent on the long term care ombudsman or other
individuals. Those councils will carry out a number of roles,
all of them of an oversight nature, but they are also very
valuable in providing activities or other support services to
residents and family members to enable them to work toward common
goals. Recently, the long term care ombudsman who was hired
after the office came under the purview of the AMHTA, left the
position. One reason he cited for his resignation was the
difficulty he encountered when looking at reinstituting the
volunteer program. When the original OAA was passed over a
decade ago, the volunteer ombudsman component was part and parcel
of what Congress had in mind. Congress wanted to avoid another
huge bureaucracy that relied only upon paid employees to provide
the critical functions of providing assistance to people who live
in long term care facilities. A volunteer program has been
instituted in every state and the OAA sets out clearly that
volunteers are a critical part of the program.
MR. JESSEE said that volunteers undergo training and testing, and
are certified and supervised. He informed members that he
provided copies of manuals used to train volunteers to committee
members. That manual is quite comprehensive and is being used as
a model around the nation. It includes education and training in
ethics, the role of the long term care ombudsman, the statutory
framework, the aging process, long term care facility
regulations, etcetera. The AMHTA believes volunteers are an
important part of the program, particularly in Alaska. If state
employees were hired to do this work, the office would have a
huge staff. He acknowledged there is an ongoing dispute among
some assisted living home providers as to whether the current
statutes allow volunteers to have access to their homes. One home
provider actually got a legal opinion that said the home owner is
not required to allow volunteers to enter her facility. The AMHTA
hopes this legislation will clarify that matter and prevent
litigation. He offered to answer questions.
SENATOR LEMAN asked Mr. Jessee if "technical support" is a term
of art that means other than financial support and asked if it
comes from the federal bill.
MR. JESSEE affirmed that term refers to information on how to
organize those groups, their structure, regulations and patient
rights.
CHAIRWOMAN GREEN said she has heard several concerns expressed,
the first being about confidentiality that is referenced on the
bottom of page 1 of the bill. She asked him to provide an example
of how that will work.
MR. JESSEE said he will describe what it does not mean. It does
not mean that the ombudsman or employees or volunteers in the
office are able to share confidential information without
complying with the confidentiality requirements that apply to the
office. It does mean there is a responsibility on the part of the
office to provide information to public agencies about
individuals who reside in long term care facilities. Without
giving individual information, the ombudsman is responsible for
bringing systemic issues to entities such as the legislature, the
Older Alaskans Commission and other public agencies that need to
be aware of the problems of older Alaskans who live in long term
care facilities.
CHAIRWOMAN GREEN asked if this information will be dispensed to
every agency in the state.
MR. JESSEE said it does not and, in fact, the long term care
ombudsman's office is prohibited from doing so by AS 47.62.030.
AS 47.62.025(b) specifically requires consent of the older
Alaskans or their legal guardians or, if unable to consent with
no legal guardian, a court order is required to get medical
records.
CHAIRWOMAN GREEN said the other area she has heard concerns about
is at the end of the bill that says a person may not deny
immediate access to a long term care facility or to an older
Alaskan by the ombudsman, an employee, volunteer, or other
representative of the office. She noted it is the "other
representative of the office" that is cause for concern. She
asked who would fall under that category.
MR. JESSEE said he cannot provide a specific example at this time
but he said that state and federal laws already require access to
any ombudsman, employee, volunteer or other representative to
investigate a complaint. They must have completed the training;
they must be certified; and they must be supervised. He suggested
that it might be an intern who has completed the training.
CHAIRWOMAN GREEN indicated that she thought it might be a higher
level investigator or inspector.
MR. JESSEE said it could conceivably be a contractor.
CHAIRWOMAN GREEN said the bigger issue is that these people must
be trained, certified, and supervised.
MR. JESSEE said that is correct. He commented that he is aware
of concerns about how the volunteer program operated in the past.
He assured her that the AMHTA will work with the provider
community to ensure that the volunteer program operates as it
should. If providers feel at any time that the program is not
operating in a proper manner, he encourages them to hold that
office and the AMHTA accountable for those shortcomings.
CHAIRWOMAN GREEN asked Mr. Jessee if the AMHTA will be doing some
training or transitioning with the providers when the volunteer
program is reinstituted.
MR. JESSEE said he has already opened dialog with the providers
and will continue to so that they are brought into the process of
developing the volunteer program.
CHAIRWOMAN GREEN announced that she would hold the bill until
Wednesday.
MS. LARRAINE DERR, Alaska State Hospital and Nursing Home
Association, informed members that SB 342 causes long term care
facilities great concern. Alaska has had three long term care
ombudsmen in the last three years. The changeover was due to the
fact that the ombudsmen were unable to handle the job duties they
had: SB 342 adds more responsibilities to the job. She said the
Association is comfortable with the ombudsman's ability to
investigate and resolve problems, but is concerned about what the
word "identify" means. Providers are also concerned about the
word "immediate" in relation to access and would like to know
that that means. She questioned whether anyone associated with
the ombudsman's office can come to the door and demand immediate
access. She said the bill has a "big brother" feel to it. She
asked for more time to poll her membership and review the bill.
CHAIRWOMAN GREEN said more time will be provided and announced
that the committee would take up SB 230.
SB 230-PSYCHOTROPIC DRUGS FOR CHILDREN
MR. RICHARD BENAVIDES, staff to Senator Bettye Davis, sponsor,
gave the following explanation of the measure.
The use of psychiatric drugs in our nation's schools
has more than doubled in the first half of the last
decade and continues to escalate. While it is
recognized that properly used, these medications have
been shown to improve behavioral patterns of some
children, as well as improve their ability to
concentrate in a classroom, there are documented
incidents of negative consequences from the use of
these drugs. There is also parental concern regarding
the issue of diagnosis and medication and using these
drugs for what are essentially problems of discipline
that may be related to a variety of causes and their
impact on student achievement.
Currently, ten states have laws on the books related to
the use of psychiatric drugs on children and while
there is no hard data on the total number of children
in Alaska on these medications, [indisc.] hope to make
clear the responsibilities of both parents and schools
and the growing debate on the use of these drugs are
requiring school districts to adopt policies
restricting school personnel from recommending that a
student be given psychiatric drugs. It would also
prohibit a child from being considered to be a child in
need of aid simply based on the refusal of the child's
custodian to give psychiatric drugs to the child.
He informed members that several people were available to testify
on different aspects of the bill.
SENATOR LEMAN asked Mr. Benavides if the words psychiatric and
psychotropic are used interchangeably in relation to drugs.
MR. BENAVIDES said, "Some people identify them as psychiatric
drugs, others call them psychotropic drugs. It depends on - the
different drugs - what they - their full term affects on kids
because a variety of drugs are used."
CHAIRWOMAN GREEN called Mr. Maloney to testify and asked him to
touch on what is actually happening in school districts now and
what this bill will require school districts to do regarding
setting policy.
MR. GREG MALONEY, Director of Special Education for the
Department of Education and Early Development (DOEED), made the
following statement.
The use of psychotropic groups with children is an area
of critical importance. Ongoing research on the impact
of such drugs on developing brains and neural networks
mandate that decisions regarding their use must be made
carefully by parents and professionals with the
capacity to make these decisions. SB 230 would put into
law what is already an ethical, professional
requirement, namely that school professionals act only
in their areas of expertise. In other words, there are
individuals in the school setting who are trained to
provide information providing certain diagnoses and
possible interventions, including at times medical
interventions. Such a person would be a school
psychologist. I'm a nationally certified school
psychologist myself. Part of the training is to learn
more and then provide the parents information about the
pros and cons, benefits, consequences of medication.
Alaska's teachers, I must say, do work hard for the
interest of children and this measure would provide
additional guidance to them. The tendency to think that
teachers are providing this maliciously because this is
a way - if the kids are not performing, this is a way
that we can do something about that. However at times,
teachers also may make suggestions regarding medication
out of an attempt to be helpful because they are trying
to help parents come up with options that may be
useful. Again, this points out the need for training in
that area because while the suggestion maybe from good
intentions, it may not have the intended consequences.
SB 230 also requires school staff to communicate
behavioral or emotional concerns to parents. The bill
may be too prescriptive when it requires a letter be
sent to the parent or guardian recommending an
evaluation be conducted by a licensed physician. This
presupposes that a student may need medication and for
purposes other than medication, a physician may not be
the best person suited to conduct that assessment. In
other words, if a student has behavioral or emotional
concerns, part of it may eventually get to the point
where a medical evaluation may need to be considered.
Prior to that, there are a number of kinds of
interventions that are non-medical in nature. One
example that you may be familiar with is called
positive behavior support in which the school
environment within which the student is operating is
changed and positive and negative reinforcements are
provided in order to help the student make better
choices. Interventions other than medication, including
positive behavioral supports, have been shown to have a
positive durable impact.
Another issue that some of you may be familiar with is
that under the Individuals with Disabilities Education
Act as amended in 1997, referred to as IDEA 97,
districts are expected to pay for medical evaluations
that are suggested as part of a student referral for
special education services. In other words, if, as part
of the evaluation, it's been noted that the school
district has some concerns related to a student's
medical needs or the need for an evaluation, quite
likely the school district would be required to pay for
that evaluation so that may have some fiscal impact on
the school district.
I suggest that the language be changed to require
school districts to notify parents or guardians of
emotional or behavioral concerns. This may occur in the
form of a letter, a telephone call, or during an
intervention team meeting. One of the really nice
things that has been developing in the last few years
is a focus on pre-referral - in other words, prior to
the referral of a student for special education
services, a team meeting made up of interdisciplinary
professionals. So, in other words, you may have a
teacher, an administrator, a speech pathologist, a
special education teacher coming together - not to talk
about whether the student is eligible for special
education, but what kinds of things can be done prior
to the referral for special education that would enable
the student to continue to make progress in the regular
classroom and not require either medication or special
education services.
On a final note, I also do not read this legislation to
be limiting the legitimate role of trained school
personnel, such as a school psychologist or school
nurse, to provide important information to parents
concerning potential benefits and consequences of
medical interventions. And so one other possible
suggestion would be to consider, instead of using the
term school personnel, regarding who this is referring
to - it may be teachers. Some state laws that have
other states that have enacted laws have specified
teachers rather than school personnel precisely because
of the issue that it may limit unintentionally the
services provided by a school psychologist or a school
nurse. The difference we see is that it is one of the
advocacy - a school psychologist or school nurse may
provide information, however that is not necessarily
advocating for the use of medication - but it is
important that parents have quality information as they
go about making this decision.
MR. MALONEY offered to answer questions.
SENATOR DAVIS commented that regarding a special education
student, a school district is already required to pay for an
evaluation and SB 230 would not change that. She pointed out that
SB 230 will affect students who are not in special education. She
said she does not have a problem with limiting what is in the
letter, but she doesn't understand why this will cause a great
expense to school districts. She also noted she does not want
this bill to apply to teachers only because too many children
have been placed in special education and put on medication
because they have behavioral problems. She added that nurses have
estimated that 800 students in the Anchorage School District are
given psychotropic drugs.
MR. MALONEY said, in regard to his statement that a referral to a
physician could require an additional expense, if a teacher
believes a student should have a medical evaluation independent
of this larger, more informed process, it could mean the district
would have to pay for it even though the special education team
may not have recommended one.
SENATOR DAVIS noted that IEPs are done for all special education
students but other students are put on medication yet do not go
through that process. She wants to make sure they do not slip
between the cracks. She pointed out that some children have been
denied the right to come to school. SB 230 prohibits a school
district from keeping a child out of school because the parent
does not want the child to take psychotropic drugs.
CHAIRWOMAN GREEN took public testimony.
MR. RICHARD WARNER, President of the Citizens Commission on Human
Rights of Seattle, said SB 230 represents an important first step
toward establishing some clear limitations on the ability of
state agencies to force parents to give normal children
psychotropic drugs. By way of background, one reason some states
are addressing this issue right now is that the use of
psychiatric drugs by children is skyrocketing. These drugs, with
the exception of Paxil and Ritalin, have never been approved for
use on children by the FDA. Paxil and Ritalin are not approved
for use by children under the age of six. The findings of a
February 2000 study in the Journal of the American Medical
Association warned that the use of stimulants on preschoolers
tripled during the 1990s. Another survey by INS Health, which
tracks pharmaceutical usage for the pharmaceutical industry,
found the use of newer anti-depressants, like Prozac and Zoloft,
on children older than six increased 580 percent between 1995 and
1999.
MR. WARNER indicated DOEED includes these children in a category
entitled, "Other Health Impaired." He was able to determine a
200 percent increase in the number of children in that category
between December of 1995 and December of 2000. During that same
time period, total school enrollment increased by 7 percent.
Legislation recently passed the Utah House of Representatives
that prohibits teachers from recommending or requiring
psychotropic drugs for a child or recommending psychiatric
treatment or evaluation. It also provides that the Division of
Family and Youth Services may not remove a child from the home
because the parents refuse to drug their child. Mr. Warner said
the state should not intervene in parental decisions regarding
medical treatment for their children when there is no clear
consensus regarding the effectiveness of the treatment or the
risk of the proposed treatment. In the case of ADD and ADHD, the
drugs have been proven to have serious side effects and the
diagnosis itself is in question, so it is more important to state
the limits of state intervention. Adverse reactions to some of
these drugs include anorexia, nausea, rapid heart beat, cardiac
arrhythmia, weight loss, psychological problems, and
physiological problems, such as liver disorders, blood disorders,
convulsions, gran mal seizures, agitation, hostility, abnormal
thinking, and 20 to 30 percent decrease in blood flow to all
parts of the brain.
MR. WARNER stated support for SB 230 and agreed that a letter
home should only state what a teacher has expertise in, for
example, the observation of specific behaviors or emotional
problems in a child. Sending a letter home requiring a medical
evaluation is tantamount to suggesting the child has a medical
disorder. He pointed out that a national consensus conference
was held on this issue in 1998. Participants concluded there was
no independent valid test for ADHD, and there is no data to
indicate these children have any brain malfunction whatsoever.
There are literally hundreds of conditions that can produce
similar symptoms so it is dangerous to use a blanket diagnosis of
ADHD for children who could have one of hundreds of things going
on.
MR. JOHN BREEDING, Director of Texans for Safe Education and a
psychologist, asked committee members to consider the statistics
provided by previous speakers. He sees this issue as one of
informed consent regarding accurate information and free choice.
SB 230 is, to some extent, an anti-coercion bill. He recommended
expanding Section 9 to say that school personnel not recommend,
suggest, or pressure. He agreed with Mr. Warner that language be
included in the bill to restrict schools from requiring the use
of psychiatric drugs as a condition of school attendance because
parents are being threatened with expulsion of their children in
many places. Regarding Section 3, he recommends including
language to prevent children from being removed from their homes
if parents refuse to medicate them, because that has been
occurring in other states.
TAPE 02-16, SIDE A
MR. BREEDING commented that not only is it proper for school
personnel to provide a comprehensive evaluation for children who
are selected out, he believes it is illegal not to do so. He said
it is proper for the school to do a full behavioral evaluation.
MS. DEBBIE OSSIANDER, legislative chair of the Anchorage School
Board, stated support for the intent of the bill. The board
believes school personnel should not be recommending medications
as that is not their area of expertise or their work. Anchorage
already employs severe prohibitions against doing so. The board
is concerned about the letter recommending a medical or
behavioral health evaluation because of implications for
requiring districts to pay for that evaluation. However, the
board is generally supportive of providing information.
MR. RICHARD RAINERY, Executive Director of the Alaska Mental
Health Board, stated support for the intent of SB 230 but
expressed concern that recommending evaluations by physicians may
impact smaller communities as they may not have the appropriate
personnel. He referred to SB 302 and suggested broadening the
pool of people who can do evaluations.
MR. FRANK TURNEY, testifying via teleconference from Fairbanks,
informed committee members that the North Star Borough School
District has brought in psychiatrists from other states on two
different occasions to give teachers a pep talk on how to
identify children with ADHD in the classroom. During the seminar,
the psychiatrist supported the use of Ritalin and another drug as
part of the treatment plan. Also the school district has had a
long time relationship with Dr. Ferguson (ph) who is a leader in
prescribing Ritalin in Fairbanks. He asked the school board to
have Dr. Ferguson to come in and give an opinion on evaluating a
child for ADHD and psychotropic drugs but they declined. In
addition, he has requested data from the school district three
times to determine how much Ritalin is being dispensed by the
school nurse but the district has not provided that information.
He informed members that the Colorado School Board was the first
in the nation to pass a resolution warning parents about the use
of Ritalin in schools. He stated support for SB 230 and said he
will send proposed amendments to the committee.
MS. BETTY ROLLINS stated support for SB 230 and said it is
important to not send a mixed message to students about drug use.
MR. CHARLES ROLLINS stated support for SB 230 and suggested
checking children in state custody to see what medication they
are taking.
MR. BROCK EIDSNESS, and 8 grader from Dzantik'i Heeni Middle
School in Juneau, read the following testimony.
Imagine a society where children are all on
psychotropic drugs. Imagine it is the teachers' fault
because they referred all of the kids - a society where
the drugs are doing more bad than good. That could
happen if someone doesn't take the power away from
teachers to put kids on psychotropic drugs. This could
be a serious problem in the near future. I think you
should pass SB 230 and save our society's children.
SB 230 is trying to limit teachers' influence on
putting kids on psychotropic drugs. Psychotropic drugs
are drugs to calm children down, like Ritalin, or to
treat mental disabilities like depression. Teachers
sometimes recommend these drugs to parents of
disobedient kids for behavioral problems. According to
the Journal of the American Medical Association, from
1991 to 1995 the number of preschoolers on anti-
depressants increased 200 percent and the number of
children ages 2 to 4 taking stimulants more than
doubled. Chemically treating our children at the rate
we are now may lead to problems in our society that
[indisc.] emotional and financial costs to correct.
These medications are being prescribed to children at
increasingly younger ages and I believe this is because
of the school influence.
Ritalin is a commonly used psychotropic drug. There are
some children for whom Ritalin may be their best
option. However there are countless others that are
being drugged unnecessarily. There are some downsides
to Ritalin, like Ritalin is derived from the same
family as cocaine; Ritalin lasts only four hours,
Ritalin treats only some of the symptoms of ADD;
Ritalin provides superficial healing - it does not
treat the root of the problem; Ritalin can cause side
effects such as appetite loss, anxiety, insomnia,
ticks, headaches and stomach aches; Ritalin use is
responsible for causing children to begin a habit of
taking drugs; Ritalin may need to be taken over an
entire life span.
Stimulant drugs were found to have short-term
effectiveness of 60 to 80 percent in reducing the
hyperactivity, distractibility, and impulsiveness of
school age children. Studies began in the 1960s show
that children who took stimulants for hyperactivity
over several years did just as poorly in later life as
a group of hyperactive children who took no medication.
Doctors sharply criticized the lack of a uniform system
for diagnosing and treating ADHD, saying the health
department had largely ignored national health and
medical research recommendations published in 1997. Dr.
Florence Levy from the Sydney Children's Hospital has
expressed concern at the frequency of incorrect
diagnoses before.
The facts are straight: the number of kids on
psychotropic drugs is rising. School influence is
forcing parents to put their kids on psychotropic drugs
by threatening to take them to social services and even
reporting them. Most teachers probably have never been
to medical school and can't diagnose that kind of
disorder. If there is, I'd like to meet them but for
now we need to limit what schools can do.
SENATOR DAVIS stated her intent in bringing SB 230 forward was
not to address what many people have referred to as teachers
making these recommendations. She said if a teacher was making
such recommendations, the teacher would not be the one writing
the letter. Teachers might say something informally during a
parent-teacher conference, but anything official would not come
from a teacher. She said her concern is about how these drugs are
being introduced to children in general, regardless of who is
doing it.
CHAIRWOMAN GREEN asked those participants who have raised
questions to work with Senator Davis and her staff to find
solutions.
SENATOR WARD asked if there is any way to find out the number of
children on Ritalin.
MR. BENAVIDES said there would be no record if a parent
administers the drug before school or if a child takes the
medication on his or her own, however the number of medications
administered by school personnel should be recorded.
SENATOR DAVIS corrected a previous statement she made and said in
the Anchorage School District 480 students were identified by the
school nurse, not 800.
MR. BENAVIDES said it should be possible to get the number of
students receiving medications from school personnel.
There being no further business to come before the committee,
CHAIRWOMAN GREEN adjourned the meeting at 3:27 p.m.
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