Legislature(1993 - 1994)

04/08/1994 01:45 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                         April 8, 1994                                         
                           1:45 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Steve Rieger, Chairman                                                
 Senator Bert Sharp, Vice-Chairman                                             
 Senator Loren Leman                                                           
 Senator Mike Miller                                                           
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
 Senator Jim Duncan                                                            
 Senator Judy Salo                                                             
  COMMITTEE CALENDAR                                                           
 SENATE BILL NO. 268                                                           
 "An Act relating to facilities for the care of children; to child             
 placement agencies; to maternity homes; to certain residential                
 facilities for adults; and to foster homes for adults; and                    
 providing for an effective date."                                             
 HOUSE BILL NO. 331 am                                                         
 "An Act relating to claims on permanent fund dividends for                    
 defaulted public assistance overpayments."                                    
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 268 - No previous action to record.                                        
 HB 331 - No previous action to record.                                        
  WITNESS REGISTER                                                             
 Representative Cynthia Toohey                                                 
 Prime Sponsor                                                                 
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Reviewed HB 331.                                       
 Pat O'Brien                                                                   
 Department of Health and Social Services                                      
  POSITION STATEMENT:   Reviewed SB 268.                                       
  ACTION NARRATIVE                                                             
 TAPE 94-29, SIDE A                                                            
 Number 001                                                                    
 CHAIRMAN RIEGER called the Senate Health, Education and Social                
 Services (HESS) Committee to order at 1:45 p.m.  He introduced                
 HB 331  (USE PFD'S TO RECOVER WELFARE OVERPAYMENTS) as the first              
 order of business before the committee.                                       
 REPRESENTATIVE CYNTHIA TOOHEY, Prime Sponsor, explained that HB 331           
 "would give the Department of Health and Social Services (DHSS) the           
 authority to collect delinquent public assistance overpayments by             
 administrative garnishment of an individual's permanent fund                  
 dividend."  She noted that at present, there are in excess of $50             
 million in outstanding delinquent debts.  HB 331 would allow DHSS             
 to recover overpayments through less expensive and less time-                 
 consuming administrative procedures.  She informed the committee              
 that DHSS and the Department of Revenue support HB 331.  She                  
 pointed out the two positive fiscal notes by DHSS and the zero                
 fiscal note by the Department of Revenue.  She urged the                      
 committee's support of HB 331.                                                
 SENATOR LEMAN moved HB 331 out of committee with individual                   
 recommendations.  Hearing no objections, it was so ordered.                   
 Number 051                                                                    
 CHAIRMAN RIEGER introduced  SB 268  (COMMUNITY CARE FACILITIES) as            
 the next order of business before the committee.                              
 PAT O'BRIEN, Department of Health and Social Services, stated that            
 SB 268 is part of the Adult Protective Services and the Licensing             
 of Adult Facilities bills which the committee has already reviewed.           
 She pointed out that licensing is a risk reduction activity.  She             
 reviewed the pie chart in the committee's packet.  Currently, there           
 is only 50 percent of the staff necessary to meet the licensing               
 standards; therefore, SB 268 attempts to become more efficient by             
 consolidating various procedures.  She said that SB 268 would                 
 condense the amount of documents a licensing person must review.              
 This is important for the native associations who are receiving               
 independent funding and want to be partners with the state in order           
 to perform licensing evaluations.  Licensing needs to be simplified           
 for the field offices as well.                                                
 Ms. O'Brien explained that if the Assisted Living bill, and the               
 Vulnerable Adults bill passes then the Division of Family and Youth           
 Services (DFYS) would focus on children.  That would reduce the               
 case load of licensing which would be helpful.  She pointed out               
 that SB 268 attempts to form a better relationship between DFYS and           
 the parents in order to better monitor child care.  She noted that            
 private agencies who are interested in licensing with DFYS are also           
 interested in liability protection which is addressed in SB 268.              
 She informed the committee that SB 268 only deals with licensing              
 procedures; program issues would be addressed in regulations rather           
 than the bill.                                                                
 Number 132                                                                    
 CHAIRMAN RIEGER inquired as to the location of the liability                  
 protection provisions.  He noted that there was a CS work draft.              
 SENATOR SHARP moved to adopt the HES CS work draft for SB 268.                
 Hearing no objection, the HES CS work draft was adopted.  CHAIRMAN            
 RIEGER pointed out that this was a work draft requested by DHSS.              
 PAT O'BRIEN explained that they had held a statewide teleconference           
 on SB 268 at which they discovered a flaw in the bill; grandparents           
 and certain relatives were not made exempt from licensing                     
 requirements.  In the House, a number of amendments were submitted            
 which were reflected in the HES CS.  She pointed out the sectional            
 analysis provided in the committee's packet.                                  
 SENATOR LEMAN asked if SB 268 would be moved or held.  If the                 
 intention is to move the bill today, then perhaps more detail could           
 be given to the bill.  CHAIRMAN RIEGER said that he would rather              
 move SB 268 today.                                                            
 PAT O'BRIEN began her overview of the sectional analysis.  She                
 pointed out that SB 268 reflects current practice.  She said that             
 they had started with the Assisted Living bill and had honed it               
 down to parallel the current licensing practices.  She noted the              
 addition of statutes that cross reference the licensing statute.              
 SENATOR LEMAN did not believe that those changes would effect the             
 possession of a firearm statute.  PAT O'BRIEN agreed that it would            
 not effect that statute.                                                      
 PAT O'BRIEN explained that section 9 was a conforming amendment               
 which states that the Administrative Procedures Act would apply in            
 appeal hearings for the most rigid activities they take.  Section             
 10 includes a purpose to the licensing statute which would be used            
 in publications to inform facilities of the role of licensing and             
 to notify parents of their responsibility in placing and monitoring           
 their child in child care facilities.                                         
 CHAIRMAN RIEGER asked if the reference to maintaining "standard               
 levels for services" in various facilities would be the same or               
 different standards that apply to each group.                                 
 Number 231                                                                    
 PAT O'BRIEN said that the standard is the same and they attempt to            
 apply it evenly across the state; a deviation would be considered             
 a variance.  CHAIRMAN RIEGER asked if the same standards would be             
 applied whether it was a residential child care facility or a                 
 foster home.  PAT O'BRIEN said no.  She explained that the task               
 force would help determine which standards should be the same.                
 PAT O'BRIEN noted the change in title of the chapter in section 10            
 from "Institutions" to "Community Care Licensing."  She continued             
 with section 11 and its changes.  Section 11 addresses the eventual           
 adoption of fees.  She also pointed out that section 11 would allow           
 them to enter into agreements with individuals as well as                     
 organizations.  The Municipality of Anchorage is the only city that           
 has been delegated powers regarding licensing child care centers.             
 Ms. O'Brien proceeded with section 12 regarding license exemptions.           
 She pointed out that facilities on Coast Guard bases are exempt               
 from licensure; however, the department would continue to license             
 family child care homes in Cordova.  She stated that the licensing            
 statute was extended.  Government operated programs are only exempt           
 when specified; only the Municipality of Anchorage has the                    
 proficiency to license.  She explained that the clause "to operate            
 for 90 days without a license" was deleted because by that time               
 damage could have already occurred.  She pointed out that the                 
 definition of a child had been changed to "under 18 years of age."            
 She said, "The exemption for an occasional placement of a child for           
 adoption without a license has been deleted."                                 
 Number 301                                                                    
 SENATOR LEMAN directed everyone to page 6, line 17 when asking if             
 those were new exemptions requiring a license; is this covered in             
 statutes.  PAT O'BRIEN said that currently it is not in statute;              
 the statute uses archaic terms such as "nursery" which means "day             
 care facilities."  All of those exemptions are currently in                   
 regulations except for the ones she had pointed out.  Ms. O'Brien             
 explained that they are attempting to consolidate the exemptions              
 into statutes.                                                                
 SENATOR LEMAN referred to paragraphs 7 and 8 on page 6 when                   
 inquiring as to the number of children for which a facility could             
 provide care without being licensed.  PAT O'BRIEN clarified that a            
 license is required if the facility provides care for five or more            
 children.  Facilities providing child care to four or less children           
 are not required to be licensed.                                              
 SENATOR LEMAN asked if there was a definition of "relative" as used           
 in paragraph 8 on page 6.  PAT O'BRIEN pointed out that the                   
 definitions could be found on page 22.  Ms. O'Brien noted that                
 "great grand-parent" was added to the list.  SENATOR LEMAN asked if           
 "cousin" referred to a first cousin.  PAT O'BRIEN said that she               
 assumed that it meant first cousin.                                           
 PAT O'BRIEN continued the sectional analysis with the application             
 for license issue.  Section 13 is basically a consolidation of                
 areas.  She indicated that there had been much support for on-site            
 inspections before a facility is licensed.  She noted that only               
 minimal licensing standards would be required in emergency                    
 CHAIRMAN RIEGER posed an emergency situation in which a neighbor              
 cares for the children while the parents leave the state.  PAT                
 O'BRIEN directed the committee to page 6, line 22 in which the                
 child could be left with the neighbor indefinitely if the family              
 made provisions for a child over nine years of age.  Ms. O'Brien              
 explained that with the 90 day clause in the definition of a foster           
 home, there had not been concern.  Perhaps, "continuing basis"                
 could be defined by regulations to specify a time limit for a                 
 family emergency.                                                             
 Number 389                                                                    
 CHAIRMAN RIEGER asked if Ms. O'Brien was suggesting that page 22,             
 line 6 be amended to limit the time to 90 days or 45 days.  PAT               
 O'BRIEN said that would probably solve the problem.  Ms. O'Brien              
 reiterated that this addresses a child eight years of age or                  
 younger;  a parent can make any arrangement for a child nine years            
 of age or older.                                                              
 CHAIRMAN RIEGER stated that he assumed that they were attempting to           
 create a threshold that was significant enough that the government            
 needed to step in.  PAT O'BRIEN informed the committee that the               
 department would not usually find out about such situations.  Ms.             
 O'Brien discussed the opinions from the teleconference regarding              
 this issue.  Ms. O'Brien recognized that they did not address the             
 need for emergency placement of a child.  Ms. O'Brien reiterated              
 that the department would not know about such a situation;                    
 furthermore, since the placement would not be on a continuing basis           
 so licensing should not be involved.                                          
 CHAIRMAN RIEGER asked if page 7, line 17 referred to a professional           
 arranging a foster home.  He did not understand why an individual             
 could not direct someone to a facility; under this language it                
 appears to be illegal.                                                        
 PAT O'BRIEN informed the committee that in previous years many                
 physicians and attorneys did make considerable  money arranging               
 placements for children.  Then the appropriate safeguards were not            
 in place and some abuses occurred.  She said that was the reason              
 for removing the exemption for placing up to three children without           
 a license.  She explained that the attorney who assisted in the               
 drafting of SB 268 was sensitive to this issue because she arranges           
 placement for children.  The attorney did not believe the problem             
 to be as big as it once was.  She said that it was professional and           
 every state has laws similar to this that do not allow for the                
 arrangement of placement of children without a license unless it              
 falls under one of the listed exemptions.                                     
 CHAIRMAN RIEGER asked if Ms. O'Brien would have a problem with                
 making it clear by saying "a person may not for compensation                  
 arrange foster care" in order to address those who do it as a                 
 SENATOR LEMAN related his experience arranging the placement of               
 four children.  He noted that he was assisted by professionals and            
 did not receive any compensation.  He tended to agree that some               
 individuals were merely informing parties of a need and he did not            
 believe this was intended to restrict that.                                   
 PAT O'BRIEN explained that generally compensation is not a part of            
 any type of licensing.  Conceptually she understood, however she              
 advised the committee not to change it to "all compensation" across           
 the statute.  She said that Senator Leman's situation sounded fine,           
 but they are concerned when people are receiving a considerable               
 amount of money which may lead to short cuts.                                 
 Number 485                                                                    
 Ms. O'Brien continued with the sectional analysis beginning on page           
 10 regarding the denial of license and the right to appeal both of            
 which are current practice.  She noted that "waivers" had been                
 changed to "variances" because it seems more appropriate.  Page 11            
 regarding the content of license condenses five sets of                       
 regulations.  She pointed out the House HES amendment which reduces           
 extra paperwork involved in a short term variance.  She explained             
 that section 15 regarding orientation and training only refers to             
 child foster homes in the statutes; although, it is required for              
 all types of care.  Therefore, this section generalizes and                   
 includes all types of care.  She noted that with SB 268 they have             
 the ability to waive the orientation and training requirement.  She           
 explained that they have always had conflicting advice from                   
 attorneys regarding records.  Records are open to the public;                 
 however, they feel that some aspects of the records should be                 
 protected.  She pointed out that foster parent information is                 
 particularly sensitive and should be protected.                               
 CHAIRMAN RIEGER inquired as to how the department would decide                
 those matters.  PAT O'BRIEN explained that page 12, line 31 would             
 apply to her last comments.  A foster parent's personal background            
 statement would not be disclosed to the public.                               
 CHAIRMAN RIEGER supported the notion.  He pointed out that other              
 areas with confidentiality statutes assume confidentiality while a            
 laundry list specifies the terms under which information can be               
 disclosed.  He expressed concern with page 12, line 31 regarding              
 whether there could be a reasonable difference in opinion between             
 the department and the parent as to whether something is private.             
 He asked who would bear the burden of whether it should or should             
 not be disclosed.  PAT O'BRIEN said that the department would                 
 circulate regulations on the issue and ask for public opinion                 
 before the ultimate list is made.  Ms. O'Brien informed the                   
 committee that most states determine that reference letters on                
 foster parents or family child care providers are open while many             
 would prefer those letters not be disclosed.                                  
 SENATOR SHARP referred to page 13, lines 2-4 when inquiring as to             
 where an annual financial report is addressed in SB 268.  He felt             
 that on the application the percentage of ownership of each                   
 individual should be present.  He also suggested that there be an             
 annual financial report.  PAT O'BRIEN explained that licensing does           
 not address funding except to assure sufficient funds for                     
 operating, such as with child placement agencies.  The funding                
 mechanism contracts is generally where such issues Senator Sharp              
 addressed are regulated.                                                      
 SENATOR SHARP asked if that would apply to day care centers with              
 numerous children.  PAT O'BRIEN said that the largest day care                
 centers can run up to 150.  Most day care centers do receive a                
 considerable amount of state funding.  Ms. O'Brien pointed out that           
 day care is administered by the Department of Community and                   
 Regional Affairs.                                                             
 Number 567                                                                    
 SENATOR SHARP stated that the Department of Community and Regional            
 Affairs told him that they do not require financial reports to                
 justify what they do with their grant money, etcetera.  He thought            
 that a condition of re-licensing should be to provide financial               
 information.  He said that he did not want to license them if they            
 were not accountable.  PAT O'BRIEN explained that child care                  
 subsidies are given to the parent who then pay the day care center;           
 therefore, that is not a direct contract with the day care centers.           
 Generally, the concerns that Senator Sharp expressed do not fall              
 under licensing laws.  Ms. O'Brien was unsure of what to suggest.             
 SENATOR SHARP asserted that it was a big loophole.  He informed the           
 committee that many of the day care centers receive most of their             
 funds through individuals who are granted funds which are funneled            
 into the day care centers.  Some of those centers are owned and ran           
 by the municipality granting program.  He said that he had data on            
 the subject.  PAT O'BRIEN said that she could review the issue.               
 TAPE 94-29, SIDE B                                                            
 Number 593                                                                    
 PAT O'BRIEN continued with section 16 of the sectional analysis.              
 She noted that SB 268 adds an annual self monitoring report.                  
 CHAIRMAN RIEGER expressed concern with line 17, page 18 regarding             
 unannounced on-site foster care home inspections.  PAT O'BRIEN                
 explained that generally inspections are announced.  She said that            
 the department would possibly make an unannounced inspection as a             
 plan of correction rather than more severe action, however, that is           
 the exception.  She informed the committee that the department more           
 frequently does unannounced on-site inspections with child day                
 PAT O'BRIEN pointed out that line 10, subsection (b), on page 13 is           
 new in the monitoring and investigation section.  This subsection             
 encourages parents to monitor their child's care.  A licensee will            
 be required to provide the parent with a summary of the standards             
 of that facility with a local number to report concerns.  She said            
 that parent involvement and being well-informed is very important.            
 She mentioned that the department provides a six month license                
 extension for a facility if the department does not perform the               
 investigation in the appropriate time.  She noted that the notice             
 of changes had been updated and standardized.                                 
 SENATOR LEMAN referred to page 14, line 28 when asking if it would            
 be appropriate to insert "or conviction" after "charging" in order            
 to close the loop.  PAT O'BRIEN felt that would be a reasonable               
 PAT O'BRIEN continued with the complaints section of the sectional            
 analysis.  She indicated that if the department has been doing                
 positive licensing then there should not be many non-compliances.             
 She pointed out that section 17 requires that a copy of the                   
 investigative report be mailed to the complainant, if requested.              
 She noted the addition of the prohibition of licensee retaliatory             
 action which would protect employees who report concerns.  Probable           
 cause has also been added to section 17 regarding the possibility             
 of a search warrant.                                                          
 Number 530                                                                    
 SENATOR LEMAN inquired as to the type of mail to which this refers;           
 would a fax be considered the same.  PAT O'BRIEN said that she did            
 not have a strong feeling about that, but pointed out that mailing            
 it would be cheaper.  Ms. O'Brien did agree that in certain                   
 circumstances the department may want to fax the copy of the report           
 due to its quickness and then follow it up by mailing a copy as               
 well.  CHAIRMAN RIEGER assumed that since the language used "shall"           
 then they may request that the report be faxed.  SENATOR LEMAN                
 clarified that the language states, "shall mail a copy to the                 
 licensee" and "to the complainant if requested."  CHAIRMAN RIEGER             
 understood; Senator Leman was referring to faxing it to the                   
 PAT O'BRIEN continued with section 17 of the sectional analysis.              
 She pointed out that they added suspension of operations due to               
 imminent danger which seems to be more constitutionally                       
 appropriate.  The array of enforcement actions are listed in SB 268           
 in order to elevate them from the department's licensing manual.              
 SENATOR LEMAN asked if there was any time limit or guideline set              
 for the department regarding the suspension of admissions on page             
 17, line 18.  PAT O'BRIEN preferred not to set a time limit due to            
 their involvement with the police who do not have control over the            
 time needed.                                                                  
 PAT O'BRIEN pointed out that if the Assisted Living bill does not             
 pass then the department retains the authority to continue                    
 licensing adult facilities; pages 19 and 20 will not go into effect           
 if the Assisted Living bill passes.  There are effective dates that           
 cover those.                                                                  
 SENATOR LEMAN explained that his amendment on page 19, line 4 would           
 delete "facility" which would broaden that section to include the             
 administrator of the agency.  PAT O'BRIEN felt that it was an                 
 oversight of the drafter.                                                     
 Number 480                                                                    
 SENATOR LEMAN moved to delete "facility" on page 19, line 4.                  
 Hearing no objection, it was adopted.                                         
 CHAIRMAN RIEGER said that the language page 18, line 24-26 seemed             
 awfully severe; he inquired as to the reasoning behind the                    
 language.  PAT O'BRIEN said that it may be referring to something             
 as serious as murder or sexual abuse.  Ms. O'Brien explained that             
 during the hearing process the possibility of rehabilitation is               
 reviewed and a recommendation is given to the department.  The                
 recommendation determines the time period for reapplication                   
 depending upon the issues.  Ms. O'Brien said that if it is                    
 something very serious it would be permanent.                                 
 CHAIRMAN RIEGER posed a situation where a facility's license is               
 revoked due to a fire.  Since such a situation would not be due to            
 a specified oversight then this person would not be able to apply             
 for a license again.                                                          
 SENATOR MILLER did not think that the last sentence on page 18,               
 lines 24-26 was necessary.  The first sentence gives the ability to           
 permanently revoke a license.                                                 
 CHAIRMAN RIEGER moved to delete "If a time period is not set by the           
 department, the revocation or nonrenewal is permanent, and the                
 former licensee may not again apply for licensure under this                  
 chapter."  Hearing no objection, it was adopted.                              
 SENATOR LEMAN moved his amendment.                                            
 Page 14, line 28:                                                             
  Delete "indictment or charging"                                              
  Insert after "knowledge of an", "indictment, charging, or                    
 Hearing no objection, it was adopted.                                         
 SENATOR LEMAN moved his amendment regarding criminal convictions.             
 Page 19, lines 7 and 8:                                                       
  Delete "or a sex crime as defined in AS 12.62.035;"                          
  Insert a new subsection to read:                                             
   "(3) That a facility administrator, foster parent, member                   
   of the licensee's household, regular volunteer, or staff                    
   person has ever had a criminal conviction of a sex crime                    
   as defined in AS 12.62.035."                                                
 Hearing no objection, it was adopted.                                         
 SENATOR LEMAN moved to delete "why" on page 10, line 31 unless this           
 is required by drafting.  Hearing no objections, it was adopted.              
 CHAIRMAN RIEGER moved to insert "; (5) a person who does the                  
 arranging on an incidental basis and without compensation." after             
 line 25 on page 7.  This insertion would mean that an individual              
 could not arrange a child's placement for money and if it is not              
 for money the individual could not present himself as someone who             
 does this routinely.  Hearing no objection, it was adopted.                   
 Number 394                                                                    
 CHAIRMAN RIEGER moved that after "continuing basis" on page 22,               
 line 6 insert "of 45 days or more."                                           
 PAT O'BRIEN did not want to allow the 90 day exemption and allow              
 someone to operate 45 days without a license.  She explained that             
 currently a facility could operate for 90 days without a license              
 due to the 90 day exclusion in the regulations which would allow              
 teenagers to stay the summer with someone.  That is already                   
 addressed in the listed exemptions for children nine years of age.            
 She felt that if there was intent to continue care past 45 days               
 there would be a need for a license.                                          
 CHAIRMAN RIEGER suggested inserting "intended to be on a continuing           
 basis of 45 days or more."  PAT O'BRIEN thought that would work.              
 SENATOR LEMAN recommended that the amended amendment be sent to the           
 bill drafter with the intent in order to thoroughly cover this.               
 CHAIRMAN RIEGER moved a conceptual amendment to be reviewed by the            
 drafter and revised if necessary.  The conceptual amendment would             
 insert "intended to be on a continuing basis of 45 days or more" on           
 page 22, line 6, after "care."                                                
 PAT O'BRIEN informed the committee that most of the foster care               
 placements are for less than 45 days.  There is a requirement that            
 if the department is going to pay for the placement then a license            
 is required.  She noted that the committee was concerned about the            
 private placements.                                                           
 SENATOR SHARP did not know if that would fall under the definition            
 of a foster home.  CHAIRMAN RIEGER agreed that the definition of a            
 foster home was broad.  Chairman Rieger suggested the following               
 Page 22, line 5, after "household"                                            
  Insert "(a)"                                                                 
 Page 22, line 7, after "parents"                                              
  Insert "or (b) provides 24-hour care on a continuing basis to                
  one or more children who are apart from their parents for                    
  compensation from the department;"                                           
 Hearing no objections, it was adopted.                                        
 Number 316                                                                    
 PAT O'BRIEN continued with her sectional analysis regarding                   
 immunity from liability.  She pointed out that private agencies               
 have strongly supported this section which clarifies if they are              
 carrying out a state responsibility.  She stated that definitions             
 reflect current practice; however, there are some minor changes.              
 She noted the 18 month implementation period which will be a                  
 tremendous job.                                                               
 CHAIRMAN RIEGER asked if SB 268 is supported by the department and            
 the child care community.  PAT O'BRIEN indicated that both the                
 department and the child care community want SB 268.                          
 SENATOR MILLER moved SB 268 (HES) as amended out of committee with            
 individual recommendations and accompanying fiscal notes.  Hearing            
 no objections, it was so ordered.                                             
 CHAIRMAN RIEGER informed the committee that he intended to bring up           
 another health care bill next week in order to move it along in               
 case SB 367 needs to be divided.                                              
 There being no further business before the committee, the meeting             
 was adjourned at 3:01 p.m.                                                    

Document Name Date/Time Subjects