Legislature(1995 - 1996)
03/07/1996 03:36 PM Senate STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE
March 7, 1996
3:36 p.m.
MEMBERS PRESENT
Senator Bert Sharp, Chairman
Senator Randy Phillips, Vice-Chairman
Senator Loren Leman
Senator Dave Donley
MEMBERS ABSENT
Senator Jim Duncan
COMMITTEE CALENDAR
SENATE BILL NO. 211
"An Act relating to sexual assault; and relating to endangering the
welfare of vulnerable adults and neglect of vulnerable adults."
Confirmation Hearing: Mary Beth Shaddy, APOC
SSTA - 3/7/96
HB 321 (EMERGENCY DISASTER HIRES IN EXEMPT SERVICE) was scheduled,
but not taken up on this date.
PREVIOUS SENATE COMMITTEE ACTION
SB 211 - No previous senate committee action.
WITNESS REGISTER
Senator Johnny Ellis
State Capitol, Juneau, Alaska, 99801-1182¶(907)465-3704
POSITION STATEMENT: prime sponsor of SB 211
Anne Carpeneti, Assistant Attorney General
Criminal Division, Central Office
Department of Law
P.O. Box 110300, Juneau, AK 99811-0300¶(907)465-3428
POSITION STATEMENT: supports SB 211
Bobbie Watts
1527 Columbine, Anchorage, AK 99508¶(907)277-1696
POSITION STATEMENT: supports SB 211
Dora Deshkin
100 Ocean Park Dr., Anchorage, AK 99515
POSITION STATEMENT: supports SB 211
Jane Andreen, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200, Juneau, AK 99811-1200¶(907)465-4356
POSITION STATEMENT: supports SB 211
Connie Sipe, Director
Division of Senior Services
Department of Administration
3601 C St., Ste. 310, Anchorage, AK 99503-5984¶(907)563-5654
POSITION STATEMENT: supports SB 211
Mary Beth Shaddy
Nominee to the Alaska Public Offices Commission
209 W. 22nd Ave., Anchorage, AK 99503¶(907)258-6105
POSITION STATEMENT: testified on her appointment to the APOC
ACTION NARRATIVE
SB 211 VULNERABLE PEOPLE:NEGLECT/SUPPORT/ASSAULT
TAPE 96-17, SIDE A
Number 001
CHAIRMAN SHARP called the Senate State Affairs Committee to order
at 3:36 p.m. and brought up SB 211 as the first order of business
before the committee.
Number 020
SENATOR JOHNNY ELLIS, prime sponsor of SB 211, introduced this bill
because Alaska does not specifically make abuse or neglect of the
elderly a crime. He hopes to correct that problem through SB 211.
He related information contained in the sponsor statement. He
informed the committee that the Department of Law has a proposed
amendment, which is in members' bill packets; he agrees with their
amendment. He has been working with the Department of Law, with
the Long-Term Care Ombudsman's Office, and with Senior Services to
work out the most appropriate language that's enforceable,
reasonable, and will do a good job to protect vulnerable adults.
Senator Ellis stated that SB 211 would create the crime of
endangering the welfare of a vulnerable adult. That would be a
class C felony, punishable by a jail term of up to five years and
a $50,000 fine. Criminal neglect of a vulnerable adult would
become a class A misdemeanor, punishable by a jail term of up to a
year and a $5,000 fine. He will defer more technical questions to
the Department of Law.
SENATOR RANDY PHILLIPS asked what the law is today for situations
like Bobbie Watts'.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, stated that Ms. Sipe could better answer that
question. She stated that these are new crimes; there are not
crimes that specifically address that situation. [The Department
of Law has stated in writing that they support SB 211.]
SENATOR RANDY PHILLIPS stated he asked about the criminal, not the
licenses. What is on the books today, for a situation like Bobbie
Watts'?
MS. CARPENETI responded she is not familiar with the facts of that
situation.
SENATOR ELLIS told Ms. Carpeneti that there was an article in the
Anchorage Daily News which related a series of charges investigated
and documented by the Long-Term Care Ombudsman of mistreatment of
Ms. Watts' father-in-law in the Friendship Home in Anchorage.
MS. CARPENETI responded that if the conduct was an assault, it
would be prosecutable as an assault. If it is neglect, she does
not think there is a provision in law, which is why SB 211 has been
introduced.
SENATOR RANDY PHILLIPS stated he is confused about what the law
states today.
SENATOR ELLIS replied that SB 211 would create two new crimes:
endangering the welfare of a vulnerable adult, and criminal neglect
of a vulnerable adult.
SENATOR RANDY PHILLIPS asked what there is today that would cover
endangering the welfare of a vulnerable adult.
MS. CARPENETI does not believe there is a provision in criminal law
that addresses that.
SENATOR ELLIS stated these are new crimes.
SENATOR RANDY PHILLIPS asked if they are saying one could assault
an elderly person and get away with it.
MS. CARPENETI responded no, because that would be an assault. But
this bill addresses abandoning a vulnerable adult, which she does
not believe is addressed in current law.
SENATOR RANDY PHILLIPS asked if there was nothing in current law
dealing with abandonment or neglect of senior citizens.
MS. CARPENETI responded there is not specifically, according to her
knowledge.
SENATOR RANDY PHILLIPS asked if there was for any other human
being.
MS. CARPENETI replied the two offenses in SB 211 are similar to
endangering the welfare of a minor and criminal non-support of a
minor.
SENATOR RANDY PHILLIPS asked if seniors would be added to minors,
under current law.
MS. CARPENETI responded that is correct.
SENATOR RANDY PHILLIPS asked about anyone else between the ages of
18 and 65.
MS. CARPENETI replied the understanding is that a competent adult,
who is able to take care of him or herself does not need to be
protected from abandonment or non-support.
CHAIRMAN SHARP noted a message from Anchorage teleconference
regarding an earthquake which just occurred in Anchorage. He asked
if Anchorage was still there.
Anchorage teleconference responded they are still there.
CHAIRMAN SHARP asked if things have stopped shaking.
Anchorage teleconference responded, yes, and that the Anchorage
Senators' houses are probably still standing.
CHAIRMAN SHARP stated the committee would return to business.
Number 170
SENATOR RANDY PHILLIPS stated he is trying to establish what laws
there are today. Would they only apply to minors and seniors, and
no one else?
MS. CARPENETI replied the present law applies to minors. SB 211
would establish two new offenses that are similar.
SENATOR ELLIS interjected that SB 211 would cover vulnerable
adults.
CHAIRMAN SHARP asked Ms. Carpeneti to give a review of the
amendment from the Department of Law.
MS. CARPENETI stated the department is recommending that the
offenses be changed to first and second degree endangering the
welfare of a vulnerable adult, which would fit into the criminal
code better than having the neglect and endangering the welfare of
a vulnerable adult. That's basically a drafting change. The one
thing it would do, which we've discussed with the sponsor, is if a
person violates second degree endangering the welfare of a
vulnerable adult, and as a result of that violation causes serious
physical injury to the vulnerable adult, it would be considered
endangering the welfare of a vulnerable adult in the first degree,
and a class C felony. Other than that, this amendment is a
drafting suggestion to fit the language into our code a little bit
better.
Number 200
SENATOR LEMAN noted that the legal analysis of SB 211 from Ms. Otto
of the Department of Law misstated a sentence. In paragraph 3, the
4th sentence states "Criminal Neglect of a vulnerable adult
prohibits a person from providing essential support...." Senator
Leman thinks it should read, "Criminal Neglect of a vulnerable
adult prohibits a person from failing to provide essential
support...."
MS. CARPENETI agreed with Senator Leman.
CHAIRMAN SHARP asked if there were any other questions regarding
the amendment.
MS. CARPENETI commented that on page 2 of the amendment, subsection
(b), it should read, "...member or adherent....", not "...member of
adherent....".
CHAIRMAN SHARP stated that a technical change would be made to the
amendment. He asked if there were other questions or comments from
committee members.
Number 238
MS. CARPENETI informed the committee that the Department of Law
supports SB 211.
CHAIRMAN SHARP asked Senator Ellis if he endorsed the amendment.
SENATOR ELLIS responded he did.
SENATOR RANDY PHILLIPS asked about Representative Mackie's bill
regarding abuse of seniors.
SENATOR ELLIS replied that bill related to personal care attendants
and appropriate and inappropriate behavior. Personal care
attendants help people avoid institutionalization and stay in their
own homes. The next step is these assisted living homes, then
nursing homes. So there is a continuum of care we're trying to set
up. Assisted living homes is an area of growth right now, and an
area where some of these problems have become evident.
Number 250
SENATOR RANDY PHILLIPS made a motion to adopt the amendment from
the Department of Law.
CHAIRMAN SHARP, hearing no objection, stated the amendment was
adopted. The amendment will be put into a State Affairs Committee
substitute. He asked that people on-line via teleconference begin
their testimony.
Number 260
BOBBIE WATTS, testifying from Anchorage, stated she is present in
memory of her father-in-law, Paul Watts. She stated that the staff
at the assisted living home in which she placed her father-in-law
was committing horrendous acts of abuse and neglect against frail,
elderly persons residing at the home. To her dismay, the crimes of
assault and reckless endangerment do not cover neglect in this kind
of abuse. Peter Gamache, Assistant Attorney General in the
Medicaid Provider Fraud Unit, has discussed with Ms. Watts the need
for a specific law to protect citizens who are vulnerable. He
stated that it is the law to report abuse and neglect, but that the
law goes flat thereafter. Ms. Watts stated that the former owners
of the assisted living home in which her father-in-law resided are
in Bangor, Maine, happy that Alaska does not have abuse and neglect
laws. Had Alaska had these laws, they would never have been able
to sell out and flee the state. [Members have in their bill
packets newspaper articles and the Long-Term Care Ombudsman's
report detailing incidents at the Friendship House, the facility
where Ms. Watts' father-in-law was living.] Ms. Watts urged the
committee to disallow perpetrators of neglect and abuse to have the
freedom to commit such horrendous acts against Alaskan Citizens.
Twenty-three states have laws criminalizing abuse and neglect;
Alaska is not one of them. The criminal code, as it exists, is
inadequate to fight this problem. Ms. Watts stated there are
people who oppose SB 211, and she cannot understand why anyone
would oppose a bill that protects our elder Alaskans. Abuse and
neglect, to whatever degree, is not tolerable.
Number 300
DORA DESHKIN, testifying from Anchorage, stated she is testifying
on behalf of the Native people who were in the Friendship Home,
like her brother, Samuel Pechutin. He was put there because there
was no other place to put him. She stated she checked it out for
booze and drugs, and everything appeared to be ok. She stated they
gave her the nine yards. It breaks her up that if she had not been
so naive, she would have looked into her gut feelings. She stated
the Friendship Home kept pressuring her for more money. Instead of
going to the Native hospital for her brother's medical supplies,
they went to Geneva Woods Pharmacy. There weren't supposed to be
any bills outside of Alaska Native Hospital for him. The
Friendship Home would go so far as going to the Native Hospital to
pick up patients. Ms. Deshkin stated it appeared to her that one
of the owners' of the Friendship Home was stoned. She hopes
something will be done immediately so those people will not get
away with what they did.
Number 350
JANE ANDREEN, Executive Director, Council on Domestic Violence &
Sexual Assault, Department of Public Safety, stated the council is
very supportive of SB 211. Vulnerable adults in Alaska continue to
be at a high risk for domestic violence and abuse, and the council
thinks it's important that as much protection as possible be
provided for them.
CHAIRMAN SHARP asked if there is anyone else who wishes to testify
on SB 211 at this time. Hearing none, he asked the pleasure of the
committee.
Number 363
SENATOR LEMAN noted that Ms. Watts stated there are people who
oppose this bill. He hasn't heard that in the testimony today. He
asked if anyone has contacted the committee with opposition to SB
211.
CHAIRMAN SHARP stated he doesn't have anything.
SENATOR ELLIS does not think the committee will find opposition to
SB 211. He thinks what Ms. Watts was referring to was the
discussion that took place in the initial stages of developing the
legislation. There was discussion over what the best approach
would be over protecting vulnerable adults. He never heard anyone
state they were opposed to SB 211; it was simply, "Should we do it
through the licensing procedure? Should we do it through
criminalizing this bad behavior?" He stated he can honestly
represent to the committee that he knows of no one who opposes SB
211.
Number 377
SENATOR RANDY PHILLIPS asked Ms. Sipe how the situation that led to
SB 211 happened.
CONNIE SIPE, Director, Division of Senior Services, Department of
Administration, stated the division supports SB 211. She thinks
that the division was originally one of the groups that was trying
to figure out how the legislation would fit in with licensing and
with civil adult protective services. We have been working with
the sponsor, the Department of Law, and national organizations
dealing with elder abuse and have found that it is a growing trend
that prosecutors do need some special laws to deal with these
situations. She does not excuse what happened in the Friendship
House case, but thinks it needs to be looked at in context. Many
of the complaints against the Friendship House came about at a
particular point in time when DFYS still licensed that home as an
adult residential care facility. It was not yet licensed under the
new assisted living laws, which became effective on July 1, 1995.
The case was problematic for all the government agencies involved.
What happened, was there was a legal glitch between the old statute
and the new statute. DFYS had the authority to continue any action
they wanted past July 1. But if they had started licensing
revocation procedures under the old law, the new law would not give
the Division of Senior Services any authority on July 1 to not give
the Friendship House a license based on what they did under the old
law. So what we did was to work together to put the Friendship
House under strict monitoring. Adult Protective Services, the
Long-Term Care Ombudsman, nurses from Senior Services CHOICE
Project, and DFYS took turns doing weekend, night, and holiday
visits. And we put conditions on the home then. But then you're
trying to shut the door after the horse has left the stable, after
some things have changed in the home. On July 1, 1995, the home
was put under the new assisted living licensing law on a strict
probationary license. They were told they had to come into full
compliance with the new law in a month. They started to make those
efforts and then quickly looked for a buyer and left the state.
State agencies cooperated with the prosecutors' office, and that's
when Mr. Gamache started to see that some of the actions didn't
seem to fit well under existing criminal laws. So this was a very
difficult case, and it happened to come at a very difficult time.
If we have another hearing at some point, Ms. Sipe would like to
let the committee know that the assisted living homes are something
the Division of Senior Services and the Division of Mental Health
& Developmental Disabilities licensed since July 1. They have
begun to build a whole system of quality assurance, of which this
criminal provision will be a part. We are also holding monthly
training with the providers. Some of the training will be
mandatory, some will be optional. They never had training under
the previous licensing program. We are also having a national
certification course for 20 administrators that we are helping
fund.
MS. SIPE stated that assisted living licensed homes are
fingerprinted through the regulations. Tracy and Deb Batchelder
had criminal background checks; it didn't prevent this from
happening. We need to have several laws in place to deal with
problems like this. The criminal law should round out some of the
legal tools in state statutes.
SENATOR RANDY PHILLIPS asked if the Bachelders had criminal
records.
MS. SIPE responded they did not have criminal records. They got
through an FBI check. All the laws passed don't necessarily
prevent abuse. They can help prevent it, and they can punish the
offenders; they never totally eliminate the risk.
CHAIRMAN SHARP noted this is the first legislation where the
administration has delivered zero fiscal notes for new criminal
violations. He also noted that SB 211 will probably make it
through the legislative process in a shorter amount of time than it
took to complete the investigation.
Number 492
SENATOR RANDY PHILLIPS made a motion to discharge CSSB 211(STA)
with accompanying zero fiscal notes [ADM, LAW, COR] from the Senate
State Affairs Committee with individual recommendations.
CHAIRMAN SHARP, hearing no objections, stated CSSB 211(STA) was
discharged from committee.
Number 500
CHAIRMAN SHARP brought up consideration of the confirmation of Mary
Beth Shaddy to the Alaska Public Offices Commission. He asked Ms.
Shaddy to testify.
MARY BETH SHADDY, testifying from Anchorage, stated she is a
teacher at Dimond High School in Anchorage. She also has an
interest in politics. She stated she is available for questions.
Number 511
SENATOR LEMAN stated the APOC has been inconsistent in the past,
and asked Ms. Shaddy if she has given any thought to how the APOC
might be more consistent in its' application of penalties for
various violations.
MS. SHADDY asked Senator Leman what he meant by the word
inconsistent.
SENATOR LEMAN asked Ms. Shaddy if she knew what the word meant.
MS. SHADDY responded she is familiar with the word. She asked
Senator Leman if he could give her a specific example.
SENATOR LEMAN gave as an example a campaign that committed
violations that are substantial, maybe did not report campaign
donations. When the campaign later finds the error and reports
that, it gets a $100 fine. Another campaign may unknowingly accept
a check that was perhaps inappropriately given. The commission
fines that campaign $1,000. He thinks that is inconsistent
application of the rules.
MS. SHADDY replied it is her understanding that each case is
considered individually. She thinks that is the way it should be.
SENATOR LEMAN asked Ms. Shaddy if she is saying there should be no
regard for past decisions made in determining consistency.
Number 530
MS. SHADDY responded she is not saying that. She just thinks that
each case should be looked at individually. The mission of the
APOC is to investigate and adjudicate complaints. Since she is not
familiar with the specific cases to which Senator Leman is
referring, she doesn't feel competent to say anything more than
that.
SENATOR LEMAN stated he was just giving an example. He didn't
expect Ms. Shaddy to be familiar with it; it was just made up.
Senator Leman stated he is dissatisfied with Ms. Shaddy's response.
CHAIRMAN SHARP commented that he has also heard that APOC's
penalties have differed greatly under the same offenses. He hopes
that type of action is in the past, and that similar offenses will
be treated similarly in the future, as far as the penalties that
are handed out. Penalties should be enforced to ensure compliance.
He urged Ms. Shaddy to look at the history of the APOC and learn
from it.
Number 557
SENATOR DONLEY commented that every once in a while, figures on
APOC reports don't balance. One of the things he's done when that
happens is to put a disclaimer on the report stating he knows
something's missing, but doesn't know what. His philosophy is to
make the best disclosure possible. In the past, the APOC has been
understanding of that. He hopes they would continue to be
understanding.
Number 570
CHAIRMAN SHARP stated he does not have a problem with having to
file the APOC reports, but he does have a problem with the
frequency with which the format of the forms is changed. He asked
that they not change the format so frequently. He urged
consistency or detailed explanation of forms.
MS. SHADDY noted that there is an ongoing attempt at APOC to become
more modern, technically speaking. The commission now has a home
page, and the office is attempting to set up contact with offices
through e-mail.
CHAIRMAN SHARP commented it saves a lot of time for him to simply
make extra copies of his APOC reports and supply those to the local
newspaper and library.
TAPE 96-17, SIDE B
CHAIRMAN SHARP asked if there were any other questions or comments
regarding Ms. Shaddy's appointment. Hearing none, he thanked Ms.
Shaddy for her testimony.
Number 580
CHAIRMAN SHARP adjourned the Senate State Affairs Committee meeting
at 4:23 p.m.
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