Legislature(2017 - 2018)CAPITOL 106
03/01/2018 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| HB290 | |
| HB336 | |
| Presentation: Key Coalition | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 290 | TELECONFERENCED | |
| *+ | HB 336 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
HB 336-SUPPORTIVE DECISION-MAKING AGREEMENTS
3:36:54 PM
REPRESENTATIVE TARR announced that the next order of business
would be HOUSE BILL NO. 336, "An Act relating to supported
decision-making agreements to provide for decision- making
assistance; and amending Rule 402, Alaska Rules of Evidence."
3:38:18 PM
REPRESENTATIVE CLAMAN moved to adopt the proposed committee
substitute (CS) for HB 336, labeled 30-LS1239\J, Bannister,
2/26/18, as the working draft.
3:38:37 PM
REPRESENTATIVE TARR objected for discussion.
3:38:44 PM
HANS RODVIK, Staff, Representative Charisse Millett, Alaska
State Legislature, paraphrased from the Sponsor Statement
[Included in members' packets], which read:
With over 100 wards per public guardian Alaska has one
of the highest rates of full guardianship in the
nation. Studies concerning individuals under full
guardianship have found that such individuals were
significantly less likely to have any kind of paid
employment and are less likely to be integrated into
their community, than people provided less restrictive
options to full guardianship.
Policy makers should engage in efforts to provide
adults with intellectual and developmental
disabilities (IDD) the needed tools to experience
lives with the most autonomy, freedom and independence
as possible. The Supported Decision-Making Agreements
Act does just that.
Designed as a mechanism to enable adults with IDD to
enter into newly created legal structures called
supported decision-making agreements (SDMA), House
Bill 336 will provide a less restrictive alternative
to full guardianship for adults with IDD. Guided by
the experience of other states, HB 336 will enable
adults with disabilities to maintain their rights to
make decisions currently being taken away from them by
guardianship orders.
The philosophy underpinning HB 336 contends that
adults with IDD do have and should retain their
constitutional and civil rights to live as freely and
autonomously as possible. HB 336 will help change the
current system in which one person tends makes every
decision for adults with IDD, even though those adults
have capacity to make many decisions on their own; to
a system where adults who can make life decisions with
support from others no longer have the right to make
those decisions taken away from them by the
government.
HB 336 will enable OPA to focus its efforts on adults
who truly need full guardianship, while providing
Alaskans experiencing varying levels of IDD an avenue
to live happier and healthier lives.
MR. RODVIK pointed out that Alaska had one of the highest rates
of full guardianship in the nation, as currently, the Office of
Public Advocacy was overwhelmed with a ratio of about 100 wards
to 1 guardian. He reported that there were more than 1500 wards
in Alaska. He explained that, under full guardianship with a
such a high caseload, there was a potential for failure to meet
monthly with the ward, potential for abuse, and loss of
independence, ambition and self-expression on behalf of the
ward. He stated that these concerns were compounded, reporting
that individuals with intellectual and developmental
disabilities (IDD) under full guardianship experienced
significantly less paid employment than those who were
independent. In Alaska, he added, there were very few options
for those adults who did not need full guardianship to receive
any other support in their lives. He declared that the proposed
bill would help Alaskans with IDD and the elderly to retain
their inherent right to make decisions for themselves and would
ensure that the Office of Public Advocacy would be able to spend
its time with those who needed the full guardianship.
3:41:25 PM
MR. RODVIK paraphrased the changes to the proposed committee
substitute (CS), Version J [Included in members' packets]
[original punctuation provided], which read:
Section 13.56.010, Page 1, Line 9: Deleted "another
adult" and added "one or more adults"
Section 13.56.010(c), Page 2, Line 1-4: Changed
language to clarify that an adult cannot enter into a
SDMA if that agreement infringes on the authority of
any guardian or conservator but still gives
principal the ability to enter a SDMA IF the
guardian/conservator approves of it in writing
3:42:28 PM
REPRESENTATIVE SADDLER asked that one term be used consistently.
MR. RODVIK replied that he would use the word "principal" and he
continued to paraphrase from the changes to Version J, which
read:
Section 13.56.030(a)(2), Page 2, Line 18: Changed the
word "the" after "assistance that" to "each" to
clarify that a SDMA may have multiple supporters
Section 13.56.030(b), Page 2, Line 20-22: Inserted
this new subsection to mandate that SDMAs contain 3rd
party notification of the rights and obligations of
supporters in SMDAs
Section 13.56.030(c), Page 2, Line 23-27: Renumbered
the section, following insertion of subsection b
Section 13.56.040, Page 2, Line 30-31: Removed
subsection 3 referencing a form provided by the
Department of Health and Human Services. DHSS will not
be required to create SDMA forms. Governor's Council
on Disabilities and Special Education has agreed to
take this on. Also, under subsection 2, line 31 added
language "the agreement?"
3:44:13 PM
REPRESENTATIVE SULLIVAN-LEONARD asked for clarification on
Section 13.56.030(b) that SDMA referred to supported decision
making agreements.
MR. RODVIK said that was correct.
3:45:04 PM
MR. RODVIK returned to the explanation of changes, which read:
Section 13.56.040, Page 3, line 2-6: Renumbered
subsection "4", to subsection "3."
Section 13.56.040, Page 3, line 8-9: Added new
subsection "4," which provides safeguards by ensuring
that a principal who also has a guardian or
conservator must notify them of the SDMA for the
agreement to be valid
Section 13.56.060(b), Page 3, line 22-24: Added
"supported decision-making" before "agreement"
Section 13.56.070, Page 3, Line 25-30: Grammar edits
in this section. Keeping consistency throughout bill,
by adding "supported decision-making" before
"agreement"
Section 13.56.080, Subsections A-D, Page 3, Line 31-
Page 4, Line 14:
Removed subsection "c" referencing the superior
court's ability to terminate or limit a SDMA, as these
are private agreements and decision-making right are
retained by the principal. Capacity is inherently
retained by principals under SDMAs. SMDAs do not grant
decision making authority away. Superior Court doesn't
have authority over these agreements
a) Clarifies that either a principal or supporter
may terminate all, or a portion of a SDMA at any
time
b) Termination process of all or part of a SDMA
must be in writing, signed, and such signing must be
presence of two witnesses who also sign the
termination paperwork, or the signature must be
notarized
c) Renumbered as subsection "c" from "b
includes language noting that a principal or supporter
can terminate all or a portion of a SDMA
d) New subsection. If certain parts of a SDMA are
terminated, the entire SDMA is not terminated, and the
untouched parts remain in effect
Section 13.56.100(2), Page 4, Line 24-25: Strikes out
"to manage the principal's affairs", replaced with
"for the principal to manage the principal's affairs".
Supporter isn't managing principal's affairs
principal is managing their own affairs with
assistance by supporter is specific areas
Section 13.56.110, Page 5, Line 11: Inserted new
subsection "3." Prohibits a supporter from signing or
providing an electronic signature for the principal.
Renumber other subsections accordingly
Section 13.56.140(3), Page 6, Line 14-15: Removed the
language "conscience or" on concerns that this
language might have been
unconstitutional/discriminatory
3:48:30 PM
REPRESENTATIVE TARR asked to describe the changes on page 6,
line 12.
MR. RODVIK read the language in the original bill, "declining to
comply with an authorization related to health care in a
supported decision-making agreement if the person is declining
because the action proposed to be taken under the agreement is
contrary to the conscience or good faith medical judgement," and
he shared that "to the conscience" was removed.
REPRESENTATIVE TARR asked why this was removed.
MR. RODVIK replied that there were concerns that this might
create avenues of discrimination and some constitutional
questions.
3:50:29 PM
MR. RODVIK returned to the explanation of changes, which read:
Removed Section 13.56.150 "Principles for providing
decision-making assistance," Page 6 of original bill
(Version D), Line 11-24 and renumbered sections
accordingly. This language is stated better in the
Shared Vision bill and shouldn't have to be stated --
we are talking about people with full agency, so these
are already inherent rights
3:51:18 PM
ANNE APPLEGATE, Program Coordinator, Governor's Council on
Disabilities and Special Education, offered her belief that this
section was about stating some general principles for the
underlying mission for this change of direction. She reported
that this was better stated in the shared vision and that it was
determined to be unnecessary and overly burdensome to be written
into the proposed bill.
REPRESENTATIVE TARR stated that this was removed in Version J.
MR. RODVIK returned to the explanation of changes, which read:
Section 13.56.150, Page 6, Line 19-27: Removed
subsection "a" referencing the superior court for same
reasons state previously, and renumbered subsections
accordingly
MS. APPLEGATE, in response to Representative Tarr, explained
that this resulted from a conversation with Nancy Meade, General
Counsel for the Alaska Court System, and it was decided to
remove it as this was a private agreement and the court would
not supervise the relationships involved.
REPRESENTATIVE SULLIVAN-LEONARD suggested that this "opens up
the question then if something does happen where there's a
certain sense of liability or maybe injury to a principal, that
does not exclude then the Superior Court's involvement with
judicial oversight." She asked if this was correct.
MS. APPLEGATE said that it did not because the opinion after
analysis of other statutes was that there could be a tort action
for negligence on the part of a supporter, if there were damages
that resulted to a principal from a failure to comply with what
they had agreed to and declared to support in that agreement.
She opined that would be a standard, ordinary negligence, and
would have to be determined by a court. She added that,
although there was not a legal opinion, this was the direction
it would go. She acknowledged that, although the court would
have authority, that authority did not need to be stated in this
proposed bill as it was well established in other places.
3:54:47 PM
MR. RODVIK returned attention to the explanation of changes,
which read:
Removed Section 13.56.185 "Regulatory authority;
forms," Page 8 of original bill (Version D), Line 9-
11: Deleted this section as DHSS won't be necessary to
create forms or regulate these private capacity
agreements. Governor's Council on Disabilities has
offered to produce SDMA forms
REPRESENTATIVE TARR directed attention to page 6, line 28, and
asked for discussion.
MR. RODVIK replied that that no changes were made, that this
section dealt with the affairs of a principal that an SDMA could
cover, and anything related to work, health care, support
services, education, finances, living arrangements and more were
all discussed.
REPRESENTATIVE TARR said that this was important to the proposed
legislation. She asked how this became the comprehensive list
for an SDMA.
MR. RODVIK explained that this list had been compiled from
examples from other states and successful SDMA projects.
3:57:20 PM
MS. APPLEGATE clarified that this list had come from the
Delaware statute and that Massachusetts had created an agreement
in the absence of a statute authorizing it. She said that the
Delaware statute was based on a non-profit study and was now
used as a template. This was a description to offer suggestions
for what might be included, and she declared that none of the
agreements had to include any or all of these, as they were
individualized to the needs, preferences, and circumstances of
the person in the center. She compared this to a laundry list
or menu for choice.
3:58:38 PM
REPRESENTATIVE SADDLER said that he did have some general
questions about the proposed bill once the changes were
discussed.
3:59:04 PM
REPRESENTATIVE TARR asked about Section 13.56.170 [page 7, line
14 of Version J].
MR. RODVIK explained that this contained the list of support
services, as referenced in the previous section, that supporters
may provide the principal as agreed upon by the SDMA. He
pointed out that this was not a fully inclusive or exclusive
list, but individualized agreements which could be narrow or
broad in scope.
3:59:52 PM
MR. RODVIK, in response to Representative Tarr, said that
Section 13.156.185 was removed in Version J. He explained that
Department of Health and Social Services was not needed to
create the forms or regulate the private capacity agreements.
REPRESENTATIVE SADDLER directed attention to page 7, line 14,
and asked for clarification that these were not exclusive, and
the list could be expanded.
MR. RODVIK said, "that is correct."
REPRESENTATIVE TARR mused that the regulations were not
necessary because there was a sample form available.
4:01:07 PM
MR. RODVIK returned attention to the proposed changes, which
read:
Section 13.56.190 (4), Page 8, Line 7-8: Added new
definition of "conservator" to include a conservator
in another state
Section 13.56.190(6), Page 8, Line 10-11: Added new
definition of "decision-making assistance"
Section 13.56.190(7), page 8, Line 12-13: Added new
definition of "guardian" to include a guardian in
another state
4:02:16 PM
MR. RODVIK directed attention to page 8, line 28, the short
title of the proposed bill, the Supported Decision-Making
Agreements Act. He discussed page 8, line 30, and the Alaska
Rules of Evidence to clarify that the execution of a supported
decision-making agreement cannot be used as evidence of a
principal's incapacity. Moving on to page 9, line 6 of Version
J, he stated that it was necessary to receive a two-thirds vote
of each house to go into effect.
REPRESENTATIVE TARR pointed out that everything in the proposed
bill was found in Section 1, and that none of the provisions
could be adopted without the two-thirds majority vote.
4:03:49 PM
REPRESENTATIVE TARR removed her objection. There being no
further objection, Version J was adopted as the working draft.
4:04:06 PM
REPRESENTATIVE SULLIVAN-LEONARD asked about the effective
changes in [Court] Rule 402.
MR. RODVIK explained that Court Rule 402 was a five-paragraph
information piece related to exceptions and admissible evidence
[Included in members' packets].
REPRESENTATIVE SULLIVAN-LEONARD said that she would continue her
review and that she supported the intent of the proposed bill.
She declared that it was "pretty convoluted between the two
bills, between the initial one and the committee substitute."
4:05:22 PM
REPRESENTATIVE SADDLER asked about the universe of Alaskans who
would qualify for SDMAs.
4:05:38 PM
MS. APPLEGATE replied that there were two discreet categories.
The first was people who did not have any guardianship, limited
guardianship, or conservative order that they were the ward
under. This group of people could create an agreement with one
or more supporters which described in detail, specific to their
circumstance, what kind of help they may desire. She explained
that the second category were people who had "some kind of
order, whether it's a guardianship order or a conservatorship
order." She stated that these people, with the signed
authorization of their guardian, could engage in the process of
creating the document and experience the process of decision
making although in a shared decision-making encounter and under
the oversight of that guardian.
REPRESENTATIVE SADDLER offered his belief that the "thrust of
the bill is to provide support for those who are not in a
position to make every decision for themselves." He stated that
inclusion in the proposed bill for people with no guardianship
issues raised it to "a very interesting level." He suggested
that this might be a lot to do.
MS. APPLEGATE explained that they did not want to exclude the
senior trying to plan for advancing age, while trying not to
rely on a single individual; but, to instead, plan their process
of needing more support as they aged. She opined that the
requirement of verification of disability put people in the
position of validating their needs. She stated that this was
"not extending any additional rights to some protected group"
and should not require any proof of that need.
4:08:43 PM
REPRESENTATIVE SADDLER asked if other states, jurisdictions, or
countries were employing this type of agreement.
MS. APPLEGATE replied that Texas has had a supported decision-
making agreement act since 2015 with no criminal or civil
actions, and no full guardianships. She added that Delaware,
British Columbia, and Australia also used this program. She
pointed out that, in Australia, there was a second tier of
supporters.
REPRESENTATIVE SADDLER asked if these all included people
without any guardianship or conservatorship.
MS. APPLEGATE offered her belief that this was the case in
Texas, and, even if the statute articulated for people with
disabilities, people were using them prior to diagnosis and as a
part of planning for the aging process.
4:10:21 PM
REPRESENTATIVE SADDLER asked if this would be difficult for
people to understand who were already having a difficult time
assessing and making decisions.
MS. APPLEGATE opined that it was necessary to educate families
and other supporters, while describing the process for support.
She shared that this process would begin by articulating long
term goals and helping someone understand what was currently
being done for the decision making. This would lead to a
creation of a statement in conjunction with a personal centered
plan. She offered her belief that, as people knew what help
they needed and wanted, it was just a matter of helping them
articulate that.
REPRESENTATIVE SADDLER suggested that, as the legislature would
need annual feedback to see how it could be made better, he
might offer an amendment to include that requirement.
4:12:44 PM
REPRESENTATIVE SULLIVAN-LEONARD shared that the proposed bill
offers a sense of ease for family members to aid in gathering
information for their loved one and the extra set of hands to
assist in the stages of their loved one. She asked Ms.
Applegate to offer examples.
4:13:45 PM
MS. APPLEGATE explained that in some government processes the
interview process was deemed confidential and, in that
circumstance, the only accompanying people were a guardian or a
formal interpreter. If someone merely needed help articulating
or sequencing a set of events, this could create obstacles for
many government processes.
REPRESENTATIVE SULLIVAN-LEONARD asked if someone could opt in or
opt out as a supporter.
MS. APPLEGATE said that she was not sure, but she offered her
belief that it would be necessary to give notice for termination
of obligation.
REPRESENTATIVE SULLIVAN-LEONARD mused that there would be a
provision for multiple caregivers in the proposed bill.
MS. APPLEGATE stated that there was a provision for a substitute
supporter.
MS. APPLEGATE said that the majority of members of the
Governor's Council either experienced disabilities or were
parent guardians of people with disabilities.
4:18:42 PM
RICK BENJAMIN, Director of Organizational and Spiritual
Wellness, Hope Community Resources, explained that Hope
Community Resources was doing a pilot project in collaboration
with the Governor's Council and the Disability Law Center. He
stated that supported decision making was based on the simple
concept that everyone had people we trusted for medical,
financial, and other advice. He stated that these agreements
just made it formal, official, and legal. He opined that,
although Alaskans liked to be independent, we did rely on others
that we trust. He shared that Hope Community Resources had
chosen the Massachusetts model, and he read a few supportive
quotes for that model. He declared that he was very excited for
this proposed bill.
4:21:40 PM
IAN MINER shared a personal anecdote about his parents taking
guardianship for him when he turned 18 years of age. He
reported that, when he attempted to remove the guardianship
order when he turned 23 years of age, it took more than 2 years
of hearings to accomplish. He shared that, had the option for
supported decision-making agreements been available when he was
age 18, he would have chosen it. This would have given him both
the help and advice he wanted as well as the rights when he
wanted them back at age 23. He stated that he now recognized
that he had not needed a full guardianship, only some guidance.
4:24:28 PM
JEANNE GERHARDT-CYRUS, Governor's Council on Disabilities and
Special Education, shared a personal anecdote, stating that she
was the parent of multiple children with pre-natal exposure to
alcohol. She relayed the story of her 19-year-old daughter,
Ivy. She reported that her daughter had some decision-making
instances for which she was not comfortable or did not currently
have the skills, related to major financial purchases, health,
benefits, and her future. She noted that her daughter consulted
with others having more knowledge to receive their input and did
not have the need for a full guardian. She pointed out that she
could not participate in some of these discussions, or act in
her daughter's behalf, without legally sanctioned, supported
decision making. She noted that with this sanction, she could
help her daughter to remain calm, reduce her anxiety, and
effectively articulate her desires and needs. She explained
that, although her daughter did not require a full guardian, she
was not yet totally independent. She declared that there should
be an option "to flex her support as she matures, and her
independence increases" as currently the option was all or
nothing. She explained that there should be the option for her
daughter to decide what she needs, and this should be adaptable
to her needs as she matures.
4:27:42 PM
LINDA GOHL, AARP, said that the proposed bill could be
beneficial to older Alaskans and their family members, as it
would allow the principal person to have a choice for whom they
designate to support and assist them. She pointed out that a
family member may not always be the one selected, as this
decision was based on trust. She shared some anecdotes. She
clarified that the proposed bill did not replace a durable power
of attorney. She noted that the principal person could also
have a team of people for support. She pointed out that an
older person who never married may be in a situation of needing
help and the public guardianship system "may not be exactly
appropriate and this would give them some other options."
4:31:42 PM
ART DELAUNE shared a personal anecdote and expressed his concern
that, as he aged, his son with fetal alcohol spectrum disorder
would not have the opportunities for a supported decision-making
process. He declared his support for a team of advocates. He
stated his support for the proposed bill.
4:36:16 PM
REPRESENTATIVE SADDLER asked if there was any downside to a
supported decision-making agreement.
MR. DELAUNE offered his belief that it was important for his son
to choose the right people to be on his team.
4:37:31 PM
HEIDI KELLY, Governor's Council on Disabilities and Special
Education, stated that she, her son, and her daughter were all
on the autism spectrum. She declared that autism did not define
who she was or who she would continue to become, and that she
used her voice on the Governor's Council as an autistic speaker
advocate. She shared her accomplishments, stating that she
hoped these would inspire others. She pointed out that, as full
guardianship takes away your voice and would not have allowed
her to make her own decisions with proper education, she would
not be who she had become. She stated that full guardianship
did not work for her family, but a supported decision-making
agreement allowed them to have a voice over their own lives.
She declared that they deserved a community that helped with
everything possible to achieve their very best. She stated her
support for the proposed bill. She emphasized that it was
"illogical to not use the power you have to do the job you
signed up for, which is to make a difference for all Alaskan
people."
4:41:21 PM
REPRESENTATIVE TARR opened public testimony on HB 336 and stated
that she would keep it open.
REPRESENTATIVE TARR announced that HB 336 would be held over.