Legislature(2017 - 2018)CAPITOL 106
01/23/2018 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Role of Contraceptive Coercion in Domestic Violence | |
| HB162 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 162 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 162-DHSS CENT. REGISTRY;LICENSE;BCKGROUND CHK
3:35:45 PM
CHAIR SPOHNHOLZ announced that the final order of business would
be HOUSE BILL NO. 162, "An Act relating to criminal and civil
history requirements and a registry regarding certain licenses,
certifications, appeals, and authorizations by the Department of
Health and Social Services; and providing for an effective
date."
3:36:09 PM
STACIE KRALY, Chief Assistant Attorney General, Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law, offered a brief overview of HB 162.
She noted that participation in many federal programs such as
Medicaid and foster care required that states conduct criminal
background checks before licensure or payment for services.
Department of Health and Social Services has been doing
background checks for many years, and, in 2005, the Legislature
passed a bill which codified a background check process for all
persons who were paid for in-whole or in-part by the Department
of Health and Social Services, as noted in AS 47.05.300. Since
then, the background check was conducted in two parts: first, a
fingerprint based criminal history check for all state and
federal criminal offenses; second, a civil history check of
various data bases, some federal and some state. This was
required for anyone applying to be a foster parent or a personal
care attendant, among others. She reported that several gaps,
overlaps, and inconsistencies had been identified and addressed
through the regulatory process. The remainder of these issues
needed to be fixed in statute.
3:38:44 PM
MS. KRALY explained that the proposed bill clarified that a
civil history check was a check of already existing registries,
and that a stand-alone registry or database was not being
created as it was not operationally or fiscally feasible. It
also clarified that background checks were required of licensed
entities, as well as the owners and the workers. She said that
the proposed bill further renamed the two existing registries,
one of which was currently called the central registry and the
other was called the centralized registry. These two registries
would be renamed the civil registry and the child protection
registry. She added that the proposed bill made amendments to
AS 47.32, the licensing provisions of the Department of Health
and Social Services. She explained that this allowed licensing
investigators to share licensing investigations with law
enforcement when there were concurrent investigations. She
added that another change would allow the three licensing
divisions to share information.
3:41:28 PM
MS. KRALY stated that this would allow the division to
investigate individuals who were accused of abusing, neglecting,
or exploiting an individual in care.
3:42:46 PM
MS. KRALY paraphrased from the Sectional Analysis [Included in
members' packets], which read:
Section 1. This section would make conforming edits to
rename the centralized registry to the civil registry
to avoid confusion under the current law with the
centralized registry (AS 47.05.330) and the central
registry in AS 47.17.040 (see section 14).
Sections 2 and 3. These sections would amend AS
47.05.310(d) and 47.32.310(d) to clarify that barrier
crimes apply to individuals as well as entities.
Section 4. This section would amend AS 47.53.310(e) to
allow an individual to seek a background check; under
the current law only entities can seek a background
check. This section would also remove, at the request
of the Department of Public Safety, the designation of
the Department of Health and Social Services (DHSS) as
a criminal justice agency for purpose of the
background check program.
Section 5. This section would amend AS 47.05. 310(f)
to make it clear that the DHSS may, in addition to
exceptions to the barrier crime provisions, approve a
variance for a barrier crime.
Section 6. This section would amend AS 47.05.310(h) to
address how a non-licensed provider, such as a
relative who is receiving payment by the Office of
Children's Services, is treated under the statute.
This amendment would make it clear that such
providers, while not being paid by DHSS, are still
subject to background checks prior to placement.
Section 7. This section would make a conforming edit
to AS 47.05.310(i) to rename the centralized registry
to the civil registry (similar to section 1).
Section 8. This section would add a new section to AS
47.05.310 to address immunity from civil or criminal
liability for reporting during the background check
process.
Section 9. This section would provide a similar
framework for the civil registry checks as background
checks (see AS 47.05.310). This means that the same
process applies to a person who is found to have a
barring criminal conviction under AS 47.05.310 as well
as a barring civil finding under AS 47.05.330.
Section 10. This section would be repealed and
reenacted to outline how the department will review
existing registries, rather than create yet another
separate database. This section would also identify
what DHSS will be looking for in terms of civil
findings that are inconsistent with licensure or
payment (e.g., CINA findings, terminated from DHSS for
assaultive/neglectful or exploitative behavior).
Information contained or obtained via the registry
would be confidential and not subject to a public
records request.
Section 11. This would amend the current immunity
section to reflect the change to civil registry from
centralized registry.
Section 12. This would establish a new section to
address the ability to seek a variance for any finding
under this chapter and how to appeal a decision if you
disagree with any decision made by DHSS.
Section 13. This section would amend AS 47.05.390(6)
to expand the definition of entity to include an
individual service provider.
Section 14. This section would rename the central
registry maintained by the Office of Children's
Services to the child protection registry to avoid
confusion. It also clarifies what is maintained on
this registry, including substantiated findings under
AS 47.10 or AS 47.17.
Section 15. This new subsection would clarify that
before a substantiated finding can be placed on the
child protection registry the person must have been
afforded notice of the finding and the opportunity to
challenge the finding.
Section 16. This section would make a conforming edit
to AS 47.32.010(c) replacing centralized registry with
civil registry (similar to section 1).
Section 17. This section would amend AS 47.32 to
provide authority for DHSS to consider prior adverse
licensing findings in determining whether to grant or
deny a license or whether to place a condition on a
license.
Section 18. This would add a new section to make it
clear that when there is an allegation that an
employee or individual affiliated with a licensed
entity is alleged to have engaged in any behavior that
would impact the safety or welfare of a resident, the
department may investigate that individual and issue a
report on the findings of that investigation. This
section would further provide that if a finding of
abuse or neglect is substantiated then that finding
will be part of the civil registry process and may
result in a person being prohibited from employment or
licensure in the future. This section would also make
it clear that before such a finding can be used, due
process must be afforded.
Section 19. This is technical fix that would clarify
when formal hearings are required when an enforcement
action is taken after a licensing investigation.
Section 20. This would add a new section to clarify
that that when law enforcement is investigating a
crime that is also the subject of a licensing
investigation, the material gathered by DHSS may be
shared with the law enforcement as a matter of law.
Section 21. This section would clarify that all
divisions who implement AS 47.32 may share information
with each other for the purpose of administering the
licensing programs at DHSS.
Section 22. This section would repeal reference to
provisions of the current law that are no longer
necessary or have been determined to be superfluous.
Specifically, the section would repeal the reference
to the civil registry when doing a background check,
references to DHSS as criminal justice agency, and
statutes stating an administrative hearing is not
required when the enforcement action sought is a plan
of correction.
Section 23. This is an applicability section for
purposes of applying the criminal and civil background
checks before, on or after the effective date of this
act.
Section 24. This section would advise the revisor
regarding title changes to reflect amendments in this
act, including the change to include the civil history
registry.
Section 25. This provides for an immediate effective
date.
3:50:25 PM
REPRESENTATIVE EASTMAN directed attention to Section 20 of the
Sectional Analysis and asked how it would work for sharing
information between multiple investigations.
MS. KRALY, in response, said that the most obvious circumstance
was a crime committed at a licensed entity, such as an assisted
living home, resulting in an immediate response by multiple
agencies and a concurrent investigation. Currently, in such a
case, law enforcement would ask for the licensing files although
the provisions that were confidential could not be shared even
though there was an ongoing criminal investigation.
3:51:56 PM
REPRESENTATIVE KITO expressed his concern for privacy. He mused
that it was necessary to attain a formal legal document to get
information, and, as this document would have provisions for
accountability, the individual receiving information would be
aware of the confidentiality and privacy requirements for this
information. He asked, if this privacy requirement were
removed, who would ensure that the individual requesting
information was accountable.
3:53:07 PM
MS. KRALY, in response, explained that confidential information
existed throughout the Department of Health and Social Services,
although she was not aware of how the DHSS dealt with this.
3:54:00 PM
REPRESENTATIVE KITO expressed his concern that any situation
which authorized "more eyes to see particular pieces of
information" was "making the opportunity for the release of that
information increase." He asked to ensure that, as there was no
side of accountability for individuals to request legal
documents, there were provisions in place to maintain the
privacy and confidentiality.
3:54:59 PM
MARGARET BRODIE, Director, Director's Office, Division of Health
Care Services, Department of Health and Social Services (DHSS),
explained that the department had many different types of
security, that the background check was from the Federal Bureau
of Investigation (FBI), and this was all contained in a log to
ensure that "people have only gone where they need to go." She
reported that should any document be missing, this would be
reported to the Office of the Attorney General and to the
Department of Public Safety. She added that a full
investigation would be conducted through Department of Health
and Social Services and the "state's IT office," as well as the
Department of Public Safety and the FBI. The Office of the
Attorney General would "wrap it all up."
REPRESENTATIVE KITO asked if the individual accountability
procedures were applicable if "we remove the firewall of having
to request information from another silo through a legal
process."
MS. BRODIE replied that there were still the same requirements
and accountability.
3:56:56 PM
REPRESENTATIVE SADDLER (alternate) asked, "How many bad apples
are now slipping through the cracks... how many people are
getting licensed that having more consistent, broader, and
efficiently applied licensing background checks is going to
fix." He requested a description of the seriousness of the
problem.
MS. BRODIE, in response, explained that if an individual had any
finding in their background check, they were denied clearance.
She noted that they could then go through a variance process
involving all the divisions within the Department of Health and
Social Services to show mitigating circumstances and to allow
explanations for why this finding was no longer an issue. She
explained that this explanation was reviewed by a committee, a
recommendation was made to the division director, and a
recommendation was then brought to the commissioner.
3:58:08 PM
REPRESENTATIVE SADDLER (alternate) asked Ms. Kraley how many
people this bill would catch.
MS. KRALY offered some individual statistics for FY17, reporting
that 23,175 individuals submitted information for the background
check process at DHSS. Of those, about 3.2 percent, 556
individuals, had barring conditions. Of these 556 individuals,
185 individuals had requested variances and 158 of those
individuals had received approval for variance.
REPRESENTATIVE SADDLER (alternate) asked how big was the problem
that was being addressed by the proposed bill.
MS. KRALY acknowledged that there was not a problem for that
purpose, as those with criminal and civil histories that were
inconsistent with licensure and had a predictive factor for use,
neglect, or exploitation were being identified. She opined that
the program, as it was designed, worked exceptionally well. She
declared that the proposed bill was designed to clean up some
language and some confusion within the statute and within the
process, so this was more understandable for the applicants.
She added that this allowed a clean-up for language and
identified gaps. She noted that these issues had been
identified many years earlier.
4:01:34 PM
REPRESENTATIVE SADDLER (alternate) pointed out that this was not
a huge problem that needed to be addressed although it was
making a system work better.
4:01:52 PM
REPRESENTATIVE TARR asked about the limitations to the multiple
state data bases for integrated information sharing.
4:03:20 PM
MS. KRALY said that efficiency was a good topic although it was
beyond the scope of the proposed bill. She explained that the
criminal background checks were performed by stand-alone data
bases, and she opined that these were not integrated and did not
access each other. She stated that the data bases accessed for
civil history purposes were civil findings unless you were
convicted of Medicaid fraud. She declared that these were
efficient registries although they were not interactive.
4:05:16 PM
CHAIR SPOHNHOLZ said that HB 162 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 162 Fiscal Note DHSS-HCS 01.22.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |
| HB162 Governor Transmittal Letter 1.22.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |
| HB 162 Fiscal Note DPS-SS 01.22.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |
| HB162 Sectional Analysis ver A 1.19.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |
| HB162 Supporting Document-FAQs on Background Checks 1.19.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |
| HB162 Supporting Documents-Proposed Background Check Process 1.22.18.pdf |
HHSS 1/23/2018 3:00:00 PM HHSS 2/20/2018 3:00:00 PM |
HB 162 |