Legislature(2013 - 2014)CAPITOL 106
02/27/2014 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s)|| Department of Administration | |
| Department of Public Safety | |
| HB127 | |
| HJR24 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HJR 24 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 127 | TELECONFERENCED | |
HB 127-OMBUDSMAN
8:50:59 AM
CHAIR LYNN announced the next order of business was HOUSE BILL
NO. 127, "An Act clarifying that the Alaska Bar Association is
an agency for purposes of investigations by the ombudsman;
relating to compensation of the ombudsman and to employment of
staff by the ombudsman under personal service contracts;
providing that certain records of communications between the
ombudsman and an agency are not public records; relating to
disclosure by an agency to the ombudsman of communications
subject to attorney-client and attorney work-product privileges;
relating to informal and formal reports of opinions and
recommendations issued by the ombudsman; relating to the
privilege of the ombudsman not to testify and creating a
privilege under which the ombudsman is not required to disclose
certain documents; relating to procedures for procurement by the
ombudsman; relating to the definition of 'agency' for purposes
of the Ombudsman Act and providing jurisdiction of the ombudsman
over persons providing certain services to the state by
contract; and amending Rules 501 and 503, Alaska Rules of
Evidence."
[Before the committee was the proposed committee substitute (CS)
for HB 127, Version 28-LS0088\G, Gardner, 2/13/14, as a work
draft.]
CHAIR LYNN relayed that public testimony for HB 127 was left
open since the last hearing on 2/25/14.
8:51:40 AM
REPRESENTATIVE GATTIS [moved to adopt] Amendment 1 to HB 127,
Version G, which read as follows [original punctuation
provided]:
Page 3, Line 17 after "47.14.050," delete all material
through the word "Services" on page 3, line 20.
REPRESENTATIVE GATTIS, in response to the chair, confirmed that
she was carrying the amendment for Representative Isaacson. She
said the amendment relates to behavioral hospitals. She said
one distinction between being incarcerated and being in a
behavioral hospital is that with the latter, people can come and
go at will.
8:53:25 AM
REPRESENTATIVE KELLER objected for purposes of discussion.
8:53:37 AM
LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, stated
that she is at a disadvantage in speaking to Amendment 1 when
she does not know the motivating factor behind it. She
indicated that the Office of the Ombudsman does not agree with
the rationale regarding individuals being in "these homes"
voluntarily. She said the individuals that the office is
considering jurisdiction over are those who have been placed
there and are in the custody the Division of Juvenile Justice,
within the Department of Health & Social Services (DHSS), and
while there may be an agreement to be in these facilities at a
certain point, it is not the understanding of the Office of the
Ombudsman that these individuals can come and go as they please,
because they are in the custody of the state. She clarified
that the office is not seeking jurisdiction over individuals
whose parents have voluntarily committed them to these
facilities and who are not in the jurisdiction of the state; it
is looking for jurisdiction over children who are in the custody
of the state and have been placed in these facilities by court
order or pursuant to a court order.
8:55:18 AM
CHAIR LYNN asked Ms. Lord-Jenkins to confirm that there are
basically two categories of people who might be in this type of
facility: one, a person there by court order, and two, a person
who either decided to be there or was placed there by a parent
or legal guardian.
MS. LORD-JENKINS answered that is correct.
8:55:38 AM
REPRESENTATIVE GATTIS said she hoped to hear from
representatives of behavioral centers to clarify their process
as it may relate to other state agencies that oversee them.
8:56:15 AM
KATE BURKHART, Executive Director, Alaska Mental Health Board
(AMHB), stated that residential psychiatric services are health
care services and, thus, not the same as incarceration. She
recollected there was testimony heard at the last hearing on HB
127 as to how the Office of the Ombudsman directs complainants
to alternative processes to help people keep out of court. She
continued as follows:
It is important to understand that in these situations
with these particular youths and children, we are in
court, and there is a judicial process overseeing this
treatment, as well as the mechanisms by which the
Department of Health & Social Services, the Center for
Medicaid and Medicare Services, and the accrediting
bodies oversee these concerns. So, we believe that
residential psychiatric treatments should not be
within the purview of the Ombudsman.
MS. BURKHART said she thinks Amendment 1 also addresses concerns
that were raised by Representative Hughes regarding ensuring
protection of health information and compliance with federal and
state privacy laws around protected health information.
Further, she said AMHB has tried to make the point that if the
Office of the Ombudsman had jurisdiction over these sorts of
complaints, then the level of expertise and capacity needed to
effectively deal with them would need to be added to the office,
as it is not contained within the office's current capacity.
She said AMHB appreciates Amendment 1, because it would remove
the section of HB 127, Version G, which would include
residential psychiatric treatment centers under the Office of
the Ombudsman's jurisdiction.
8:59:25 AM
MS. LORD-JENKINS noted that Ms. Burkhart had mentioned Health
Insurance Portability and Accountability Act (HIPAA), and she
deferred to Ms. Leibowitz to address that issue.
8:59:35 AM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
stated that the HIPAA regulations provide an exception for cases
where state law gives mandatory access to records. She said
since the statute for the Office of the Ombudsman mandates its
access to agency records, it does not deal with HIPAA
regulations; it basically has an exception to them. She said
the Office of the Ombudsman does obtain medical information and,
as with other types of confidential records, is bound to
maintain that confidentiality.
9:00:48 AM
REPRESENTATIVE HUGHES said Ms. Burkhardt was explaining that
there other procedures and entities that can address issues.
She offered her understanding that when someone comes to the
Office of the Ombudsman with a need for investigation, the
office makes certain the person has already gone through the
available internal processes. She asked how many cases come to
the Office of the Ombudsman where the person has already gone
through those internal processes and still needs assistance.
She further questioned whether the Office of the Ombudsman has
had any such cases if it does not already have that
jurisdiction.
9:01:51 AM
MS. LORD-JENKINS confirmed that because the Office of the
Ombudsman has not had jurisdiction over these sorts of cases, it
has not seen a lot of these complaints. Looking at similar
agencies, she said the Office of the Ombudsman has routed 50
percent or more complaints related to the Office of Children's
Services (OCS) through the process and "they frequently come
back." Regarding the contention that there are available
processes for people to follow, she stated that OCS, which is
one of the Office of the Ombudsman's biggest individual agency
complaint loads, for years had a very confusing grievance
process - like "a black hole" - for individuals who were unaware
of how to follow statutes and regulations policies and
procedures. She said in 2011, the Office of the Ombudsman
opened up an investigation into the efficiency and effectiveness
of the OCS grievance process. She said she assigned an attorney
to review the entire process, and that revealed many
misunderstandings about what the grievance process was. The
statutes and regulations were contradictory, and grievances got
lost. She said the Office of the Ombudsman recommended that OCS
completely revise its grievance process, and it did so and
brought the new process on line in the spring of 2013. She said
it is good that an agency has a complaint process, but that does
not guarantee the process is effective. Many agencies have
oversight - Medicaid looks at money and OSHA looks at workplace
safety - and even with that oversight there are still problems,
which is one of the reasons the Office of the Ombudsman
considered trying to expand its jurisdiction.
REPRESENTATIVE HUGHES asked how many of the calls that come in,
related to what Amendment 1 addresses, and are routed back to
internal processes are not addressed.
MS. LORD-JENKINS answered that the Office of the Ombudsman has
not tracked that aspect of it. She said a complainant whose
complaint is not within the jurisdiction of the Office of the
Ombudsman and is routed back to the agency and finds the agency
has not acted fairly, reasonably, and in accordance with its
policies, procedures, regulations, and statutes can return to
the Office of the Ombudsman; however, if the Office of the
Ombudsman finds that the agency has acted fairly and followed
procedure, then it is not going to advocate for the complainant
just because he/she does not like the finding or answer.
REPRESENTATIVE HUGHES stated:
Before we began, I knew this amendment had something
to do with voluntary versus not voluntary, and then we
learned that ... in these residential facilities it is
actually directed by the court, so it's not voluntary.
And so, I'm struggling a little bit. ... I was
wondering if Kate and others believe that it's not
necessary for the Ombudsman to have jurisdiction, then
I would think that they would assume everything can be
solved through the internal processes, right? And if
everything can be resolved through the internal
processes, then there wouldn't be anybody leftover at
the end of that process that would need the Ombudsman.
So, if the Ombudsman had oversight ... just in that
rare case that it might not be resolved, ... I guess
I'm struggling with why they might want it removed,
because they're confident that they're handling it
already, and so, ... the Ombudsman wouldn't be
knocking at their door. And so, it seems like it
could be a safety, and since these aren't truly
voluntary, ... I need somebody to convince me that
this amendment is necessary, and I'm sorry that nobody
came to talk to me beforehand and I wasn't better
educated.
9:08:16 AM
CHAIR LYNN said the Office of the Ombudsman might want to check
into cases that relate to being voluntary. He said we all go to
a doctor voluntarily, but may find there is something about that
experience that needs the intervention of the Office of the
Ombudsman.
9:08:56 AM
MS. BURKHART stated, "First and foremost, these are issues
between private parties - a private health care provider and a
patient and the patient's family, and as such they are not
suitable for Ombudsman jurisdiction." In a case where a youth
or child has been committed to the custody of the Department of
Health and Social Services, whether to OCS or the Division of
Juvenile Justice, both the child and parent(s) have an attorney.
The child will always have a guardian ad litem (GAL), and often
also have a court-appointed special advocate. She said youth or
children are committed to residential psychiatric treatment with
the parents' consent or by court order. In situations where the
child is in custody, the parents are typically asked to consent
to the treatment recommendation. If there are issues with
medication, the court, all advocates, and the parents are
involved. She said the court exercises oversight on a regular
basis. She related that she has been involved in cases where
there have been monthly status hearings to ensure that the
treatment was responsive to the needs of the youth and met the
concerns of the parent. She cautioned equating grievance
procedures set out by executive agencies with the patient
advocacy and grievance procedures set out by health care
organizations. She said the venues, situations, and content are
completely different, because it is a health care setting.
Further, she said the health care organizations providing the
services have grievance procedures separate from the court
process by which the child or youth and parent(s) can have their
complaints resolved. Those procedures are governed by the
Centers for Medicare & Medicaid Services, the entity which has
established patient rights, grievance parameters, rules and
regulations guiding access to patients - "quality of care, not
just funding" - and all the procedures are federally compliant.
She indicated involvement in the procedures by the creditors of
the residential psychiatric treatment.
MS. BURKHARDT said the department, through its licensing and
funding procedures, has the ability to resolve patient and
parent complaint. She said when a child is admitted through the
court process, the court-appointed social advocates and GAL
communicate with the department, the court, and the treatment
team. She said Alaska is committed to patient-centered
treatments. She said the system is complex, with a lot of
avenues, by which people can have their concerns addressed. She
said it is not a perfect system, but opined that to provide
jurisdiction to the Office of the Ombudsman over a health care
complaint between private parties is not appropriate and -
considering the greater context by which concerns about
treatment can be resolved - unnecessary, especially when
considering "we've yet to hear a quantified demand for the
service." She said the department and the providers can all
speak to the numbers of concerns and complaints that they have
addressed; therefore, they have a better understanding of the
demand that is being expressed by the patients and their
families and how it is being addressed.
9:14:53 AM
REPRESENTATIVE KREISS-TOMKINS recollected that Ms. Lord-Jenkins
had said there is no record of the number of calls that have
been turned away because of lack of jurisdiction. He ventured
that the anticipated discussion relating to the Alaska Bar
Association (ABA) will be similar to the current discussion. He
mentioned a memorandum dated 2/26, from ABA to the House State
Affairs Standing Committee, in which ABA indicated the Office of
the Ombudsman had said it turned away 11 calls between 1993 and
2013 because they were outside its jurisdiction. He said that
is a numerical quantitative answer, and he questioned why "a
similar numerical quantitative answer doesn't exist for cases
that would apply to what we're talking about right now."
9:16:19 AM
MS. LORD-JENKINS explained the reason is that all along the
Office of the Ombudsman has maintained that the ABA was subject
to its jurisdiction, and it was clear that "these contract
agencies" were not subject to its jurisdiction, so "tracking
them was different on our case management systems." She said
when the office receives calls about entities that are not State
of Alaska agencies or an instrumentality "as the Bar contends it
is," then those entities are tracked differently and it is
difficult to cull information about them. She explained that
the Office of the Ombudsman has an intake log on which it tracks
its cases; however, it would be an onerous search. She said
with the ABA, "we just hit a couple buttons and we have that
information."
9:17:47 AM
REPRESENTATIVE HUGHES said it was helpful to hear [from Ms.
Burkhardt] that the children have two different advocates. She
said "our" job is to protect the people of Alaska, not to
protect agencies, which is why the Office of the Ombudsman
exists. She indicated that in agencies with internal processes,
there could be a tendency for bias; therefore, she said she was
glad to hear about those looking out for the sole interest of
the children.
9:18:49 AM
MS. LORD-JENKINS responded that individuals being watched out
for by guardians ad litem or court appointed special advocates
(CASAs) or caseworkers or attorneys often do not agree with them
or think their decision making is appropriate. Sometimes there
is a difference of opinion as to what the best interest is, and
the Office of the Ombudsman often receives complaints of that
nature.
9:19:32 AM
REPRESENTATIVE KREISS-TOMKINS offered his understanding that the
purpose of a GAL is to have an independent, impartial, objective
person looking at a situation with focus on the child's best
interest. He said it is managed through the court process and,
as such, strives for objectivity. He asked Ms. Burkhardt if she
sees the proposed expansion of the jurisdiction of the Office of
the Ombudsman to be duplicative to the process that already
exists with guardians ad litem and the court process. He
requested that Ms. Lord-Jenkins elaborate on her previous
response as to how she sees what the Office of the Ombudsman
would do as not being duplicative to what already happens within
the court process.
9:20:53 AM
MS. LORD-JENKINS responded that a GAL starts at the beginning of
the case and follows it through to the end, and in many cases
makes parental decisions on behalf of a child or sometimes an
adult in adult protective service cases. She said the Office of
the Ombudsman comes in part way through a case to look at
individual, specific complaints. She said the complainant may
be in an adversarial position with his/her guardian ad litem,
and the Office of the Ombudsman looks to see "how they're both
behaving," including what decisions are being made and whether
the complainant is being heard. She said sometimes, in OCS
cases, the Office of the Ombudsman has records that the
guardians ad litem have not seen. She stated, "We're different.
I mean, we're impartial and they're supposed to be impartial
also, but I think it's a different role. I guess I can't
articulate it any better than that." Ms. Lord-Jenkins said
there are cases related to Adult Protective Services and the
Office of Public Advocacy (OPA) where adults are unhappy with
their GALs and they complain about them a lot. In those cases,
the Office of the Ombudsman looks to see if the GAL is
responding adequately, if the GAL is granting enough funds for
the adult to live - "that sort of thing." She indicated that
these are cases where there are differences of opinion.
REPRESENTATIVE KREISS-TOMKINS asked what kind of oversight role
the court plays with GALs who may be deemed to be performing
unsatisfactorily or not to the best interest of whom they
represent.
9:23:31 AM
MS. LEIBOWITZ said the GAL is generally selected by the court,
and she offered her understanding that the GAL will usually be
either an OPA employee or contractor. She said the court can
pick the GAL to some extent, and it can also dismiss the GAL.
9:24:25 AM
The committee took an at-ease from 9:24 a.m. to 9:28 a.m.
9:28:00 AM
CHAIR LYNN reminded those testifying that before the committee
was the proposed Amendment 1 to HB 127, Version G, and comment
should be limited to the amendment.
9:28:26 AM
LAURA MCKENZIE, Director, Quality Improvement and Risk
Management, North Star Behavioral Health (NSBH), testified in
support of the proposed Amendment 1 to HB 127, Version G. She
concurred with the testimony of Ms. Burkhardt. She stated that
NSBH not only has an internal grievance procedure, but also has
external grievance procedures that are overseen by at least six
different entities. She said patient residents at NSBH are
admitted at the request of their guardians, and the decision to
admit and discharge is based on medical necessity, not court
order. Additionally, she said all the treatment at NSBH is
externally reviewed for appropriateness, to ensure that lengths
of stay are not inappropriately extended.
9:30:10 AM
KAREN PERDUE, President/CEO, Alaska State Hospital and Nursing
Home Association (ASHNHA), relayed that she was a former
commissioner of DHSS for eight years, under Governor Tony
Knowles. She stated support of the proposed Amendment 1 to HB
127, Version G. She said even though the focus is on juveniles
in the custody of the department, she foresees there would be
jurisdiction over private facilities and patients, because the
Office of the Ombudsman would look at processes and the entire
practice of an entire facility in the context of an individual
investigation. She said she thinks it is a big step to have the
legislature become involved in the regulation of private health
care facilities through the Office of the Ombudsman. She said
it would be a big move in an area that is highly regulated. She
recollected testimony had been given that judges provide
oversight; however, she said she thinks there are many other
agencies that do so. She concluded, "I think we do care that
the children are watched out for, very much. I think when you
have many different parties trying to make a decision, you ought
to have one person in charge, and that is the judge." She urged
the committee to support the proposed Amendment 1.
9:32:09 AM
REPRESENTATIVE HUGHES recollected that someone had remarked that
if the jurisdiction is extended, the Office of the Ombudsman
would not have the expertise to "delve into things ... with
health care providers."
MS. PERDUE said she agrees. She said the children are under
direct medical care of physicians. She said the process is
directed by the judge, and the care is directed by the
physician.
9:32:58 AM
CHAIR LYNN asked who is responsible for [overseeing] the
regulations that ASHNHA is required to follow.
MS. PERDUE responded that the Centers for Medicare & Medicaid
Services have "real teeth" and can make unannounced visits in
response to grievances and can remove state licenses or
accreditation and funding.
9:33:54 AM
MS. MCKENZIE recapped her previous testimony.
9:35:32 AM
TOM CHARD, Director, Alaska Behavioral Health Association
(ABHA), indicated that ABHA oversees 50 members, including
behavioral health centers, drug and alcohol treatment centers,
and mental health centers. He said ABHA supports the proposed
Amendment 1 to HB 127, Version G. He noted that the committee
had heard from its member, North Star Behavioral Health, as well
as received written testimony from Juneau Youth Services, and he
mentioned testimony from "Providence" regarding the levels of
oversight. He said there has been a lot of discussion regarding
detention and how many layers of oversight there are; North Star
Behavioral Health testified that "this is a medical placement."
He said detention is not being considered, because the Office of
the Ombudsman already has oversight over OCS and the Division of
Juvenile Justice (DJJ). He highlighted that the issue is
whether the Office of the Ombudsman should oversee private
medical providers and what the benefit would be if it did. He
expressed appreciation for Representative Hughes' previous
question asking what the harm would be in adding one more layer
of oversight. He opined that the harm would be allowing people
to do something without the necessary level of expertise. He
said with its fiscal note and current capacity, [the Office of
the Ombudsman] is just going to send people back to the existing
grievance procedures, thus, he does not know what the value
would be for anyone.
9:37:46 AM
REPRESENTATIVE KELLER observed that the use of the word
"oversight" is interesting, because the Office of the Ombudsman
does not oversee - it investigates in an attempt to solve a
problem. He stated, "I think oversight is a bit of a stretch,
and I've noticed that as a consistent concern ... that I think
may be an overreaction, for what it's worth."
MR. CHARD responded that he appreciates Representative Keller's
comment; he concurred that [the work of the Office of the
Ombudsman] is investigatory, not oversight.
CHAIR LYNN said the Office of the Ombudsman may take its
investigation to the legislature, which, at some point may have
to weigh in on it, and he remarked that the legislature is not
an expert in health care.
MR. CHARD offered his understanding that under current statute,
if there is a complaint that does not get satisfied, the Office
of the Ombudsman has oversight over the departments and the
divisions; therefore, it can ask the divisions of DHSS how the
grievances are being settled within the department, and if the
Office of the Ombudsman is not satisfied with the answers, it
can, within its current jurisdiction, "address the oversight, or
the investigation, of those complaints."
9:39:29 AM
CHAIR LYNN asked Representative Keller if he maintained his
objection to the motion to adopt Amendment 1 to HB 127, Version
G.
REPRESENTATIVE KELLER removed his objection, but said he thinks
a question has been put on the table that is much larger than
the issue with the resident care facilities. He clarified that
removing his objection does mean he is convinced that the
jurisdiction of the Office of the Ombudsman does not cover the
residential facilities, but explained that he needs legal
clarification before deciding what other amendments may be
needed. He opined that [the proposed Amendment 1] is a step in
the right direction, but warned that "we may be going down a
rabbit trail that we can't finish here." He indicated that
exempting some agencies may be confusing for the ones that are
not listed, because it may imply that they are not under the
Office of the Ombudsman's jurisdiction. He said he thinks the
legislature, as the entity that signs checks and makes
appropriations, owes it to the public to provide a means for
investigation into serious complaints by a citizen.
9:42:11 AM
CHAIR LYNN stated an objection to Amendment 1. He said he
thinks the committee needs "other people to speak to this."
9:42:26 AM
REPRESENTATIVE HUGHES said she finds it odd that the Office of
the Ombudsman came forward to request something without having
done some kind of tracking to assess the need for it. She said
she sees what Representative Keller is saying and agrees that
the legislature has the responsibility to protect Alaska
citizens. She said she respects those who testified, but
ventured that if all their grievance processes are working, it
should not be a big deal to give the Office of the Ombudsman the
jurisdiction it has requested. She indicated the same applies
to the Alaska Bar Association, which she acknowledged is a
different topic.
CHAIR LYNN remarked, "If they believe that their processes are
working, we've kind of got the fox watching the chickens here."
9:43:52 AM
REPRESENTATIVE KREISS-TOMKINS said he supports Amendment 1, not
because he is convinced the internal grievance processes are
completely objective, but because there already exists an
"inherently independent" process through the court-appointed
guardians ad litem. He said he wished he had asked Ms.
Leibowitz how the Office of the Ombudsman's investigatory
recommendations would differ from that of the judge. He opined
that having both is unnecessary. He said he thinks there is
merit to the concerns raised that there should be a fiscal note
and some sort of "professional capacity or expertise within the
Office of the Ombudsman to review these cases"; however,
ultimately.
9:45:44 AM
A roll call vote was taken. Representatives Hughes, Keller,
Millett, Kreiss-Tomkins, and Gattis voted in favor of the motion
to adopt Amendment 1 to HB 127, Version G. Representative Lynn
voted against it. Therefore, Amendment 1 was adopted by a vote
of 5-1.
9:46:32 AM
REPRESENTATIVE GATTIS indicated she wanted to wait until HB 127
was heard by the House Judiciary Standing Committee to offer
another amendment.
9:46:52 AM
REPRESENTATIVE MILLETT said if the amendment needs to be
offered, she would do so during the House Judiciary Standing
Committee's hearing on HB 127.
CHAIR LYNN announced that HB 127 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HJR24 ver A.PDF |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 02 HJR24 Sponsor Statement.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 03 HJR24 Request for Equipment.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 04 HJR24 AAPC Preliminary Report Excerpt.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 05 HJR24-LEG-SESS-2-21-14.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 06 HJR24 amendment a.1.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| 07 Explanation for amendment a.1 to HJR 24.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |
| Governor Appointment Commissioner Administration - Thayer.pdf |
HSTA 2/27/2014 8:00:00 AM |
|
| Governor Appointment Commissioner Public Safety - Folger.pdf |
HSTA 2/27/2014 8:00:00 AM |
|
| 08 HJR24 Support Letter_Trimble.pdf |
HSTA 2/27/2014 8:00:00 AM |
HJR 24 |