Legislature(2001 - 2002)
04/15/2002 01:57 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
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HOUSE BILL NO. 252
"An Act relating to the construction of certain
statutes relating to children; relating to the scope of
duty and standard of care for persons who provide
services to certain children and families; and
providing for an effective date."
RYNNIEVA MOSS, STAFF, REPRESENTATIVE COGHILL testified in
support of the legislation. She provided members with
proposed committee substitute, work draft LS0454\R, 4/12/02
(copy on file). She reviewed the committee substitute. A new
section was added on page 5, line 3 to state:
The state and the state's and agents may not be held
civilly liable for money damages for failure to perform
a duty imposed under this chapter solely on the basis
that the duty was not performed within a time period
specified under this chapter.
Ms. Moss maintained that children and their parents should
be able to sue the state when it wrongful abuses its power.
She observed that the Division of Family and Youth Services
has more power over more vulnerable Alaskans than any agency
in government. The sponsor, Representative Coghill, believes
that means they should be held most accountable.
Ms. Moss observed that remedies for children and parents
should include equitable relief, which the proposed
committee substitute does. This means that they have a way
to make government do what is right. They should also have
the ability to recover civil damages for losses due to
government's failure to fulfill duties assigned by the
legislature.
Ms. Moss referred to language recommended by the Department
of Law. She asserted that the department's language
continues to protect government from full accountability for
wrongful conduct that can have a devastating impact on
children and families. It would allow government to escape
liability for the failure to comply with the duties in
statute. The duties include the duty of the state when it
acts as a child custodian to fulfill the duties of a
custodian just as parents are expected. These duties include
providing for safety, care, nurturance, and education of
children. When the state takes a child from its family it
should be fully accountable while performing the same duties
that parents are legally obliged to provide. Government
should be more alert and assertive in performing its duties
to children, families and parents. Because the Department of
Law has failed to come up with statistics on monetary suits,
they are assuming that there are very few cases brought
against the Division of Family and Youth Services. She
maintained that the legislation places into statute what
most Alaskans already believe is the case: that when
government takes a child into custody, they are accountable
for their actions on as close to as level a playing field as
parents are liable. The proposed committee substitute allows
flexibility in meeting timelines in dealing with court
requirements, something that parents do not have. While the
Division of Family and Youth Services does not have the
ability to level monetary damages for failure to care, they
have the more extreme ability to take their children away
from their parents.
Representative Harris MOVED to ADOPT work draft LS0454\R,
4/12/02. There being NO OBJECTION, it was so ordered.
Representative Hudson stated his intention to change the
effective date from July 1, 2002 to July 1, 2003 for
sections 3-6 and 8-9. He noted that this would delay the
implementation of the "intensive family preservation
services" until 2003, while allowing the study to go
forward. He noted that he supports the legislation but
observed that there have been concerns regarding the date of
implementation. He expressed concern that a 2002
implementation date would disrupt current services. There is
no new funding for the provisions. He observed that 24-hour
services would require additional staffing. The next
legislature could change to an earlier implementation date.
Sections 7 and 10 would retain the July 1, 2002 effective
date.
Representative John Coghill spoke in support of the delayed
effective date.
Representative Hudson MOVED to ADOPT Amendment 1: delete
"2002" and insert "2003" on page 7, line 5.
Representative Davies referred to language on page 4,
beginning on line 17: The department need not provide
services to an otherwise eligible family if (1) services are
not available in the community in which the family resides;
or (2) services cannot be provided because the program is
filled to capacity." He concluded that the concerns being
raised by the amendment are already addressed in the
legislation. The legislation reflects the practicality of
whatever funding is available.
Representative Hudson responded that persons under contract
to provide the services feel that there is an implied
mandate to move into the intensive family preservation
services to the harm of the existing services, primarily
because only $50 thousand dollars was added in the fiscal
note (to provide for the study).
Representative John Davies argued that there might be
opportunities for the department to implement the provisions
and questioned why prevent them from doing so when they can.
He pointed out that there is already language that clarifies
that there is no requirement to do so if the money is not
available.
TERRI LAUTERBACH, ATTORNEY, ALASKA LEGISLATIVE AFFAIRS
AGENCY, JUNEAU, provided information regarding the
legislation. She explained that section 10, which would
still go into effect on July 1, 2002, reflects the
definition of intensive family services in section 8.
Section 8 only includes the definition and should have the
same effective date.
Representative Hudson concluded that sections 3 - 6 and 9
would be delayed to July 1, 2003. Sections 8 and 10 would
have a July 1, 2002.
Ms. Lauterbach noted that section 7 has not been addressed
and would therefore be a 90-day effective date.
Co-Chair Williams repeated the motion to amend:
* Sec. 11. Sections 1 and 2 of this Act take effect
under AS 01.10.070(c).
* Sec. 12. Sections 8 and 10 of this Act take effect
July 1, 2002.
* Sec. 12. Sections 3-6 and 9 of this Act take effect
July 1, 2003.
Ms. Moss observed that the sponsor would prefer section 7 to
have an immediate effective date.
Vice-Chair Bunde requested the amendment in writing.
HB 252 was HELD in committee until later in the meeting.
HOUSE BILL NO. 252
"An Act relating to the construction of certain
statutes relating to children; relating to the scope of
duty and standard of care for persons who provide
services to certain children and families; and
providing for an effective date."
Representative Hudson restated his Motion to ADOPT Amendment
1.
* Sec. 11. Sections 1 and 2 of this Act take effect
under AS 01.10.070(c).
* Sec. 12. Sections 8 and 10 of this Act take effect
July 1, 2002.
* Sec. 12. Sections 3-6 and 9 of this Act take effect
July 1, 2003.
Representative Hudson noted that there would be substantive
changes with the legislation. The effective date of July 1,
2002 would be too fast without additional funding. The
Department would have to perform intensive family services.
The amendment would allow the study to occur and the
services to be provided subsequent to the study. He
maintained that the amendment would put a proper time
sequence into the bill to effectively accomplish the goal.
Section 10 would implement the study. Section 8 defines the
program.
THERESA TANOURY, FAMILY SERVICES ADMINISTRATOR, DIVISION OF
FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES discussed the study. The legislation would require
the Division to study who would be eligible for services in
each of the regions and who would benefit from these types
of services. She stressed that the Division does not have
the funding to implement the services under their existing
appropriation. Implementation under their existing
appropriation would cause undue hardship to many families
and children that receive these types of services. She spoke
in support of the amendment.
There being NO OBJECTION, Amendment 1 was adopted.
Representative Croft MOVED to ADOPT Amendment 2. Co-Chair
Williams OBJECTED. Representative Croft explained that the
intent of Amendment 2 would be to clarify the limitation and
liability section. Under the current statute the state is
not liable for violations of the provisions. The intent is
to prevent huge liability costs, by making every conceivable
technical violation of the statute actionable, while
preserving the ability of children and families to assure
that things are done properly. The amendment states that the
department has a duty to exercise reasonable care toward
children in its custody. The amendment also states that
failure to comply with a provision of the title does not
constitute a basis for civil liability. Children and their
families would still be able to use file under the CINA
proceedings.
Ms. Moss stressed that the language in Amendment 2 continues
to protect the government from full accountability for
wrongful conduct and could have a devastating affect on
children, families and parents when a child is in state
custody. She maintained that the amendment allows the
government to escape liability for failure to comply with
the provisions of the title. She observed that
Representative Coghill's legislation addresses timelines but
also acknowledged that the state has the responsibility of
physical care and control of the child, determination of
where and with whom the child shall live, the right and duty
to protect, nurture, train and discipline the child; the
duty of providing the child with food, shelter, education
and medical care; and the right and responsibility to make
the decisions of financial significance concerning the
child. She concluded that the department would not have to
comply with the legislative standards and the department
could not be held monetarily accountable if their actions
hurt families. She questioned what provisions of the title
the legislature not want the department to be accountable
for. She acknowledged the department's difficulty in
following court dates, but emphasized that they need to be
accountable for the duties and standards to children.
Parents are held accountable and their punishment is much
more severe.
Ms. Lauterbach observed that the second sentence of the
amendment needs clarification. She questioned who would be
covered by the "factor to comply." There are lots of
entities covered under the title: including shelters,
programs for run away children, courts and schools. She
observed that the Alaska Temporary Assistance Program, civil
commitment, interstate compact on the placement of children,
delinquency institutions and childcare facility licensure
come under the title. The amendment would provide that
failure to comply with any of the provisions would not be
the basis for civil liability, if the family involved were
also served by CINA.
Representative John Davies thought that the department would
still be accountable through the legal system. He questioned
the remedy of civil damages. He did not see the nexus
between civil liability and the care of the child. He
pointed out that the removal of children from parents is not
meant as a punishment, but is intended to protect the child.
Vice-Chair Bunde questioned the threshold for civil action
against the state. Ms. Lauterbach clarified that Title 9
addresses the distinction between a discretionary and
mandatory duty. If the state under takes to do an act, it
must act without negligence. It would have to be a mandatory
act. The decision to put a sign on a dangerous road could
not be sued, but the failure to put the sign up properly
could be litigated. The choice of services is discretionary,
but if they decide to provide a service, than it must be
provided without negligence.
Ms. Moss emphasized that the Division of Family and Youth
Services is on the same legal ground as any other state
entity. This is the only place where specific law would
state that there is no duty or standard of care; other
entities are not exempted from duty or standard of care. The
agency would be dealt with differently than any other. She
observed that parents might come to two or three visitations
in a row without being able to see their kids.
A roll call vote was taken on the motion.
IN FAVOR: Croft, Davies
OPPOSED: Bunde, Foster, Harris, Hudson, Lancaster,
Whitaker, Williams, Mulder
Representative Carl Moses was absent from the vote.
The MOTION FAILED (2-8).
Vice-Chair Bunde referred to section 4 and questioned if
there would be a separation of power issue.
If the court concludes that continuation of reasonable
efforts of the type described in (a) of this section
are not in the best interests of the child and
intensive family preservation services were not
provided in the case, the court shall enumerate in the
record the reasons the services were not provided.
Ms. Lauterbach observed that the decision is left to the
court. The proposed committee substitute would ask that the
findings be in the record.
Representative Foster MOVED to report CSHB 252 (FIN) out of
Committee with the accompanying fiscal note.
CSHB 252 (FIN) was REPORTED out of Committee with a "do
pass" recommendation and with previously published fiscal
note: HSS (#1).
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