Legislature(1999 - 2000)
03/24/1999 02:41 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
March 24, 1999
2:41 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 57
"An Act relating to vulnerable adults; and providing for an
effective date."
-MOVED CSSB 57(JUD) OUT OF COMMITTEE
SENATE BILL NO. 42
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
-MOVED CSSB 42(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 57 - See HESS minutes dated 3/3/99, 3/8/99 and 3/15/99.
SB 42 - See State Affairs minutes dated 2/16/99.
WITNESS REGISTER
Ms. Sheila Peterson
Legislative Aide to Senator wilken
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 57 for the sponsor
Mr. Dwight Becker
Protective Services Coordinator
Division of Senior Services
Department of Administration
3601 C St.
Anchorage, AK 99503-5984
POSITION STATEMENT: Supports SB 57
Ms. Fran Purdy
Long Term Care Ombudsman
Division of Senior Services
Department of Administration
3601 C St.
Anchorage, AK 99503-5984
POSITION STATEMENT: Supports CSSB 57(JUD)
Ms. Maria Moya
Office of the Ombudsman
PO Box 113000
Juneau, AK 99811-3000
POSITION STATEMENT: Commented on CSSB 57(JUD)
Ms. Jane Demmert
Alaska Commission on Aging
PO Box 110209
Juneau, AK 99811-0209
POSITION STATEMENT: Commented on CSSB 57(JUD)
Mr. John Hanchett
PO Box 10041
Fairbanks, AK 99710
POSITION STATEMENT: Supports SB 57
Mr. James Crawford
Legislative Legal and Research Services
Alaska State Legislature
130 Seward St., Suite 409
Juneau, AK 99801-2105
POSITION STATEMENT: Presented SB 42
ACTION NARRATIVE
TAPE 99-21, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:41 p.m. Present were Senators Donley, Torgerson and
Taylor. The first order of business to come before the committee
was SB 57.
SB 57-CARE FOR VULNERABLE ADULTS
SHEILA PETERSON, staff to Senator Gary Wilken, sponsor of the
measure, informed committee members that Senator Wilken was Co-
Chair of the Long Term Care Task Force during the interim. The
task force looked at a variety of issues involving senior services,
including adults with disabilities. One issue brought to the
attention of task force members is a loophole in the Alaska
statutes dealing with vulnerable adults. If a vulnerable adult has
the potential of being abused by a guardian, the Department of
Administration (DOA) is currently unable to continue an
investigation if the vulnerable adult (through the guardian) asks
that the investigation be terminated. After reviewing the issue,
the task force recommended that legislation be introduced to
address this problem. The Alaska Commission on Aging, as well as
other entities involved with senior citizens, have endorsed SB 57.
CHAIRMAN TAYLOR moved to adopt an amendment (#32499) proposed by
Senator Green.
SENATOR TORGERSON objected for the purpose of discussion.
SENATOR GREEN explained the Office of the Long Term Care Ombudsman
(OLTCO) is currently housed in the DOA, and is partnered with some
of the groups it is called to investigate. That proximity has been
cause for concern. The proposed amendment moves the OLTCO into the
Office of the Ombudsman, which is within the purview of the
Legislature. The amendment also transfers OLTCO's federal funds,
funneled through the Commission on Aging, to the Office of the
Ombudsman. SENATOR GREEN informed committee members she worked
with Maria Moya, the current Ombudsman, and Jane Demmert, the
Director of the Commission on Aging, to ensure that this proposal
satisfies those involved.
Number 110
SENATOR TORGERSON questioned whether the bill will have any fiscal
impact. SENATOR GREEN answered the transfer of funds will require
a fiscal note, though the two staff are entirely funded with
federal dollars.
CHAIRMAN TAYLOR clarified the bill will have a zero impact on the
state's budget.
SENATOR TORGERSON asked if the Administration agrees with the
transfer. SENATOR GREEN said that is her understanding. She
stated the location of the OLTCO in the DOA creates a fairly strong
conflict; the Commission on Aging and DOA are uncomfortable with it
as well.
DWIGHT BECKER, Director of Adult Protective Services, stated his
support for SB 57. Regarding the amendment, he deferred to Jane
Demmert for her position but stated he has no objection to it.
FRANCES PURDY, Long Term Care Ombudsman, stated the OLTCO supports
SB 57. She also deferred to Jane Demmert for a position on the
amendment. She stated SB 57 meets the needs of seniors and is
drafted in a way that supports the intent of the federal law and
state statutes regarding the OLTCO.
Number 187
SENATOR TORGERSON asked Ms. Purdy how many cases her office handles
each year. MS. PURDY replied OLTCO handled 877 complaints last
year.
SENATOR TORGERSON asked what the backlog is on those cases. MS.
PURDY answered the backlog right now is approximately 180
complaints.
SENATOR TORGERSON questioned the average time it takes to render a
decision on a complaint. MS. PURDY replied the average time last
year was 46 days.
Number 210
SENATOR TORGERSON asked whether the OLTCO's caseload has increased.
MS. PURDY said the complaints have become more complex, and the
number increased between 50 and 100 last year.
SENATOR TORGERSON asked if she has had a corresponding increase in
federal funding, based upon the increased caseload. MS. PURDY said
they have not.
SENATOR TORGERSON asked how the amount of federal funding is
determined. MS. PURDY answered part of it is designated in the
Older Americans Act, and the other part is discretionary to the
state. She deferred to Jane Demmert for more information on the
formula.
SENATOR TORGERSON expressed concern that transferring an office
with a backlog of cases and static funding will require an increase
in state funding for the Office of the Ombudsman. He asked Ms.
Purdy whether she feels a current conflict exists with the OLTCO's
location within the Department of Administration.
MS. PURDY said a conflict does exist. She also clarified that she
and Ms. Moya, the Ombudsman, have agreed that the work of the OLTCO
will remain discrete; backlogged cases will not spill into the
Office of the Ombudsman. SENATOR TORGERSON said he understands the
intent but his concern is that no mechanism exists to increase the
amount of federal funding for the corresponding increased caseload.
MR. JOHN HANCHETT made the following remarks via teleconference
from Fairbanks. As a member of the Long Term Care Task Force, he
was informed through testimony, on numerous occasions, he heard
repeated testimony about the inherent conflict with OLTCO and the
other agencies in DOA. He expressed support for transferring OLTCO
so that Ms. Purdy can be more effective. In the past, she has
investigated complaints but was unable to come to a resolution
because of the conflict of interest. Regarding the content of SB
57 concerning vulnerable adults, he urged the committee to support
the measure.
MARIA MOYA, Acting Ombudsman in the Alaska Office of the Ombudsman,
stated she recently researched other general jurisdiction ombudsman
offices to see if any had integrated the Long Term Care Ombudsman
function into their office, and if so, how. She contacted offices
in the states of Iowa, Hawaii, Arizona, and Ohio and spoke to
former Alaska employees. The Ombudsman's Office in the State of
Ohio provided a model of its program which integrated the two
offices in 1979 and has operated successfully. That model was used
as the basis for the amendment before the committee.
SENATOR TORGERSON asked Ms. Moya how she can convince him
"adopting" the OLTCO will not have an impact on her office,
considering both offices are backlogged. MS. MOYA responded
regulations are in place that define the priority of cases. Those
regulations provide a framework from which to discern how resources
are allocated. The highest priority cases involve emergency health
and safety issues. The next priority involves systemic issues in
which a large number of people could be impacted. The third
priority involves cases of single instances of harm. MS. MOYA said
using that framework over the last few years has resulted in no
backlog, primarily because her office has had to tell a lot of
people it could not address their issues because it did not have
the resources to do so. Those people are provided with other
avenues to take, and information on how they can successfully
resolve their own issues.
Number 317
SENATOR TORGERSON pointed out almost 100 percent of the OLTCO's
cases involve life, health, and safety issues because they relate
to vulnerable adults, so they will become the highest priority. He
repeated his concern that an increasing backlog and static funding
will require the Office of the Ombudsman to request more money from
the general fund. He asked if a formula exists to get more federal
funds.
MS. MOYA stated she is not familiar enough at this point to answer
questions about the funding channels for the federal long term care
ombudsman program. She added she would approach the situation by
designating specific individuals to specific duties. The Office of
the Ombudsman would have two branches: the OLTCO and the general
jurisdiction ombudsman branch, and funding for each will be kept
separate.
Number 349
CHAIRMAN TAYLOR stated if the committee is assured that the Office
of the Ombudsman will compartmentalize its functions, then there
should be no cost increase to the general fund.
MS. MOYA replied the Ohio model has two separate branches with
separate statutes and regulations that provide guidance for meeting
their different mandates.
CHAIRMAN TAYLOR questioned whether the policies of DOA come into
conflict with the results of OLTCO investigations.
MS. MOYA said her office has not looked into the issue but she
understands that being housed within the agency that includes many
of the entities that the OLTCO may have to investigate presents an
inherent conflict.
CHAIRMAN TAYLOR asked Ms. Moya how long she has been employed with
the Ombudsman's Office. MS. MOYA answered eight years. CHAIRMAN
TAYLOR wished her luck.
Number 372
JANE DEMMERT, Director of the Alaska Commission on Aging, commented
the original bill, dealing with vulnerable adults, will be a
constructive piece of legislation that does fill a gap. The
Commission on Aging has been exploring options of the best location
for the OLTCO. Discussions began last fall with the Office of the
Ombudsman about housing OLTCO with it. She believes consolidating
the two offices has merit for the vulnerable adults in Alaska.
SENATOR DONLEY asked who will determine whether a vulnerable adult
is incompetent.
MR. BECKER answered Adult Protective Services (APS) is authorized
by law to conduct a preliminary assessment and file petitions to
bring a competency matter before the court. APS files about 15
percent of the petitions; the other 85 percent are filed by private
parties, attorneys and others. He suggested the OLTCO could also
work with his agency to bring a matter to court.
Number 415
SENATOR DONLEY said his concern is that existing law allows adults
to decide whether or not they want to be protected; SB 57 will let
a state agency make that decision, and will allow a state agency to
decide whether the adult is competent to make that decision. The
standard used will be a "reasonable cause to believe" that a person
needs protective services. That might be a reasonable standard
under a law that allows the adult to terminate it at any time, but
it is not appropriate under a law that says "Big Brother" gets to
determine when you get to decide whether you want to be protected
or not. He suggested using "probable cause" as the standard.
Number 458
CHAIRMAN TAYLOR suggested Senator Donley provide proposed language
to address his concern while the committee further discusses
Senator Green's amendment.
CHAIRMAN TAYLOR asked if there was continued objection to adopting
the amendment proposed by Senator Green. There being no objection,
the amendment was adopted.
SENATOR DONLEY moved to replace the word "reasonable" with the word
"probable" on line 7, page 1.
CHAIRMAN TAYLOR noted one check and balance remains in the proposed
system because once the state has made the decision, the court must
find that the person is not competent to decide for him/herself.
SENATOR DONLEY noted his amendment includes the same language
change on line 13.
DWIGHT BECKER asked for clarification of the amendment. CHAIRMAN
TAYLOR explained on page 1, lines 7 and 13, the word "reasonable"
is to be replaced with the word "probable."
Number 489
MR. BECKER stated two issues are involved: the first is determining
whether the vulnerable adult is in need of protective services; the
second is whether or not the vulnerable adult is incompetent. He
expressed concern that a lower standard of proof be required for
APS to approach a vulnerable adult to ask for their consent, but a
higher standard be used to determine whether the vulnerable adult
is competent to make his/her own decision. He explained that
currently, APS determines that a vulnerable adult needs protective
services with the consent of the person. APS also uses a standard
at least as high as probable cause when filing a petition with the
court to declare a vulnerable adult incompetent.
CHAIRMAN TAYLOR affirmed that the petition cases he has been
involved in have met a much higher standard before a petition was
brought by the Department. He assumed existing statutory language
must allow APS to make the initial determination as to whether a
vulnerable adult needs protective services.
MR. BECKER said if that is the case, he supports the legislation.
CHAIRMAN TAYLOR noted there being no further objection to Senator
Donley's amendment to change the word "reasonable" to "probable" on
page 1, lines 7 and 13, the motion carried.
Number 524
SENATOR DONLEY asked for further elaboration on who determines
whether a person is competent, and what standard is used.
MR. BECKER explained a judge must make the ruling in probate court.
Anyone can file a petition and bring the matter before the court.
CHAIRMAN TAYLOR informed Mr. Becker that AS 47.24.010 uses the
phrase, "reasonable cause to believe that a vulnerable adult
suffers from abandonment, exploitation, abuse, neglect, self
neglect, ...." Therefore the standard APS must use to make the
threshold determination about whether a person may be within this
class is "reasonable cause." He added a two-part process takes
place when determining whether or not a person is competent. Part
of that process is in-house. Discussions take place about a
person's competency, and at least one physician who has worked with
the person has to testify to a person's competency.
There being no further discussion on CSSB 57(JUD), SENATOR HALFORD
moved to report the bill from committee with individual
recommendations. Without objection, CSSB 57(JUD) moved from
committee. CHAIRMAN TAYLOR noted the bill will most likely be
referred to the Senate Finance Committee.
SB 42-1999 REVISOR'S BILL
JAMES CRAWFORD, Assistant Revisor, stated SB 42 is the 1999 wrap-up
revisor's bill. He asked the committee to consider one amendment.
Last year a statute was amended to remove paragraph (a)(2), and the
remaining paragraphs were renumbered however, a few cross
references were not corrected, one in AS 15.13.074(h) and another
in AS 15.13.078(b). The amendment cross references those sections.
He explained AS 15.13.074 relates to disbursement of campaign
assets after an election and prohibits the Governor or Lieutenant
Governor from making certain types of contributions, but not to a
political party.
SENATOR ELLIS moved to adopt the proposed amendment. CHAIRMAN
TAYLOR objected for the purpose of discussion. There being no
further discussion or questions, CHAIRMAN TAYLOR withdrew his
objection and the proposed amendment was adopted.
TAPE 99-21, SIDE B
SENATOR ELLIS moved to adopt CSSB 42(JUD). There being no
objection, the motion carried.
SENATOR HALFORD moved CSSB 42(JUD) from committee with individual
recommendations. There being no objection, the motion carried.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting.
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