Legislature(1993 - 1994)
04/08/1994 01:45 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE
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
situations.
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
business.
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
care.
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
amendment.
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
licensee.
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.
AMENDMENT
Page 14, line 28:
Delete "indictment or charging"
Insert after "knowledge of an", "indictment, charging, or
conviction"
Hearing no objection, it was adopted.
SENATOR LEMAN moved his amendment regarding criminal convictions.
AMENDMENT
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
amendment.
AMENDMENT
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.
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