Legislature(2017 - 2018)GRUENBERG 120
04/26/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB81 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 81 | TELECONFERENCED | |
SB 81-DHSS CENT. REGISTRY;LICENSE;BCKGROUND CHK
1:04:29 PM
CHAIR CLAMAN announced that the only order of business would be
CS FOR SENATE BILL NO. 81(HSS), "An Act relating to criminal and
civil history record checks and requirements; relating to
licenses, certifications, appeals, and authorizations by the
Department of Health and Social Services; relating to child
protection information; and providing for an effective date."
1:05:18 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 1, labeled 30-
GS1676\D.3, Bruce, 4/24/18, which read as follows:
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 17.38.200(a) is amended to read:
(a) Each application or renewal application for
a registration to operate a marijuana establishment
shall be submitted to the board. A renewal application
may be submitted up to 90 days before the expiration
of the marijuana establishment's registration. When
filing an application for a new registration under
this subsection, the applicant shall submit the
applicant's fingerprints and the fees required by the
Department of Public Safety under AS 12.62.160 for
criminal justice information and a national criminal
history record check. When filing an application for
renewal of registration, an applicant shall submit the
applicant's fingerprints and the fees required by the
Department of Public Safety under AS 12.62.160 for
criminal justice information and a national criminal
history record check every five years. The board shall
forward the fingerprints and fees to the Department of
Public Safety to obtain a report of criminal justice
information under AS 12.62 and a national criminal
history record check under AS 12.62.400."
Renumber the following bill sections accordingly.
Page 13, line 27:
Delete "secs. 3 - 10"
Insert "secs. 4 - 11"
REPRESENTATIVE REINBOLD objected.
1:05:24 PM
REPRESENTATIVE LEDOUX commented that Amendment 1 may have been
passed unanimously on the floor of the House of Representatives,
and the amendment relates to fingerprinting with respect to
marijuana establishments. She then asked Representative Andy
Josephson to come forward and explain Amendment 1.
1:06:10 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, advised
that Amendment 1 simply requires that a commercial seller of
marijuana be fingerprinted every five years, and currently the
requirement is every year.
1:06:46 PM
REPRESENTATIVE EASTMAN opined that the committee passed a ten
year designation and it was compromised down to six years, he
asked whether the six year requirement was passed on the floor
of the House of Representatives.
REPRESENTATIVE JOSEPHSON answered in the affirmative.
CHAIR CLAMAN asked Representative Josephson whether it was six
years, and if it was six years, why does Amendment 1 read five
years.
REPRESENTATIVE JOSEPHSON responded that it read five years
because "we think this is an opportunity to move this bill along
the path," and it is appropriate under the title of the bill.
This is what the marijuana board wishes and the department
definitely believes this amount of time is adequate, he said.
1:08:11 PM
REPRESENTATIVE KREISS-TOMKINS commented that he likes six years.
1:08:17 PM
REPRESENTATIVE REINBOLD asked why not keep it at the one year
requirement.
REPRESENTATIVE JOSEPHSON opined that the department believes one
year is inconsistent in treating marijuana the same as alcohol,
it is onerous, and it is more than is necessary.
REPRESENTATIVE REINBOLD commented that it is a new industry and
she believes one year should be fine, especially if that is as
currently written in statute. She said that the issue is not
what the department wants, but what the people want, it is a
public safety issue, and five years seems like an awfully long
period of time.
1:09:14 PM
REPRESENTATIVE EASTMAN asked Representative Josephson to remind
the committee of the current time period for the alcohol
industry once an establishment has a license, and whether it
must come back every five years for a federal background check.
REPRESENTATIVE JOSEPHSON deferred to Megan Holland, staff.
1:09:42 PM
MEGAN HOLLAND, Staff, Representative Andy Josephson, Alaska
State Legislature, answered that there is no statutory
requirement to obtain additional fingerprints to renew alcohol
registration. However, she offered, in the alcohol regulations
it is common practice to require additional fingerprints
approximately every five years or whenever there is a transfer
or change.
REPRESENTATIVE STUTES opined that the practice is that a person
is fingerprinted when there is a transfer of the license and not
every five years.
REPRESENTATIVE EASTMAN commented that that was his understanding
as well.
CHAIR CLAMAN asked Stacie Kraly, DOL, whether the administration
has any objection to Amendment 1.
1:10:42 PM
STACIE KRALY, Chief Assistant Attorney General, Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law (DOL), responded that the department
has no objection with Amendment 1.
1:11:07 PM
REPRESENTATIVE EASTMAN offered Conceptual Amendment 1 to
Amendment 1 to change five years to six years, which was the
compromise language.
REPRESENTATIVE REINBOLD objected.
1:11:27 PM
REPRESENTATIVE EASTMAN said that as a matter of fact, there has
never been a case in Alaska where an application for a license
has been denied since the program began. He offered that he
does not know why people have to go through this needless cost
of re-fingerprinting when there had been no evidence of any type
of violation, and nothing had demonstrated a need.
1:12:04 PM
REPRESENTATIVE LEDOUX commented that she could live with five
year, six years, ten years, and because she could live with all
of those timelines, since the bill's sponsor and the board are
recommending five years, she said to leave it at five years.
REPRESENTATIVE KREISS-TOMKINS commented that he does not take
what the Marijuana Control Board (MCB) says as gospel or
necessarily representative of what is in the best interest of
the industry. Especially, he offered, given the board's flavor
and tilt that is not necessarily reflective of what he believes
are the views of a majority of legislators toward the now de-
criminalized industry. He said that six years was the
compromise on the floor of the House of Representatives and he
supports it as a compromise in this context as well.
[The committee treated the objection to Amendment 1 as
maintained.]
1:13:21 PM
A roll call vote was taken. Representatives Eastman and Kreiss-
Tomkins voted in favor of the adoption of Conceptual Amendment 1
to Amendment 1. Representatives LeDoux, Reinbold, Kopp, Stutes,
and Claman voted against it. Therefore, Conceptual Amendment 1
to Amendment 1 failed to be adopted by a vote of 2-5.
1:14:03 PM
REPRESENTATIVE EASTMAN commented that in recognizing that this
committee has been down this road before, he said that he will
maintain his objection to the adoption of Amendment 1 because he
does not see the value in putting this additional hurdle on
applicants for licenses. The legislature decided to make it
legal, and it should be treated in the same manner as alcohol.
He pointed out that that was the whole point of the initiative,
it is what the public wanted, and on behalf of his district, he
would be a no vote.
REPRESENTATIVE LEDOUX noted that Representative Eastman had
commented that he would object to Amendment 1 because he does
not want to put more hurdles on the people in the industry.
Except, she pointed out, if Amendment 1 does not pass, then
those people have to be fingerprinted every year, so that is the
hurdle for people in the industry. She related that if she were
in the industry, which she is not, she would rather be
fingerprinted every five years rather than every year, which is
the status quo.
1:15:26 PM
A roll call vote was taken. Representatives Stutes, LeDoux,
Kreiss-Tomkins, Kopp, and Claman voted in favor of the adoption
of Amendment 1. Representatives Eastman and Reinbold voted
against it. Therefore, Amendment 1 was adopted by a vote of 5-
2.
1:15:52 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 2, labeled 30-
GS1676\D.4, Bruce, 4/24/18, which read as follows:
Page 1, line 6:
Delete "a new paragraph"
Insert "new paragraphs"
Page 2, line 11, following "Services":
Insert ";
(20) a position in the classified,
partially exempt, or exempt service of the state that
is subject to a limitation on hiring or retention
under AS 39.90.050"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 39.90 is amended by adding a new
section to article 1 to read:
Sec. 39.90.050. Employment of individuals with
access to vital statistics records. (a) A hiring
authority may not hire or retain an individual in a
position in the classified, partially exempt, or
exempt service under AS 39.25 for which regularly
assigned duties include handling or having access to
vital statistics records, unless the
(1) individual submits to the hiring
authority two full sets of the individual's
fingerprints; and
(2) hiring authority verifies that the
Federal Bureau of Investigation has, based on the
fingerprints provided under (1) of this subsection,
(A) conducted a national criminal history
record check of the individual under AS 12.62.400(a);
and
(B) advised that the individual has not
been convicted of a criminal offense of which the use
or misuse of vital statistics records was an element.
(b) Upon receipt of an individual's fingerprints
under (a) of this section, the hiring authority shall
submit the fingerprints to the Department of Public
Safety. The Department of Public Safety shall submit
the fingerprints to the Federal Bureau of
Investigation for a national criminal history record
check under AS 12.62.400(a).
(c) Upon receipt of the results of the national
criminal history record check under (b) of this
section, the Department of Public Safety shall advise
the hiring authority whether the individual has been
convicted of a criminal offense of which the use or
misuse of vital statistics records was an element.
(d) In this section,
(1) "hiring authority" means a person with
authority to hire or retain an individual in a
position in the classified, partially exempt, or
exempt service under AS 39.25;
(2) "vital statistics" has the meaning
given in AS 18.50.950."
Renumber the following bill sections accordingly.
Page 13, line 24:
Delete "This Act applies"
Insert "(a) AS 12.62.400(a)(19), enacted by sec.
1 of this Act, and secs. 3 - 24 of this Act apply"
Page 13, line 27:
Delete "secs. 3 - 10"
Insert "secs. 4 - 14"
Page 13, following line 27:
Insert a new subsection to read:
"(b) AS 12.62.400(a)(20), enacted by sec. 1 of
this Act, and AS 39.90.050, enacted by sec. 2 of this
Act, apply to the hiring or retention of an individual
in a position in the classified, partially exempt, or
exempt service of the state for which assigned duties
include handling or having access to vital statistics
records under AS 39.90.050, enacted by sec. 2 of this
Act, on or after the effective date of this Act."
REPRESENTATIVE KREISS-TOMKINS objected.
1:15:58 PM
REPRESENTATIVE LEDOUX explained that the impetus for Amendment 2
came about because an employee in the Health Analytics and Vital
Records Section, Department of Health and Social Services
(DHSS), pointed out to her that the people in that section have
access to "really, really important information." She offered
that if that information got into the wrong hands, it could
cause disastrous security breaches because it could be used to
create identities and a credit history or passport for someone.
She said she would like to hear the department's view of this
amendment.
1:17:14 PM
MS. KRALY responded that while the department does not object to
the overall policy considerations within Amendment 2, it
believes there is a broader issue than solely vital statistics,
and there are a couple of concerns and considerations the
department believes should be taken into fact here. Ms. Kraly
relayed that the Department of Health and Social Services (DHSS)
has a number of employees with access to all sorts of
information, and the Health Analytics and Vital Records Section
is one. There are other divisions and other components of DHSS
that have confidential information and important information
that should also be evaluated. Therefore, she said, it is the
department's belief that it would be most effective and
efficient if the department evaluated the entire department's
employees' pool to determine who should be included within a
more rigorous employment check for DHSS, she offered. The
department also believes there are potentially significant
collective bargaining and personnel issues related to adding a
provision such as Amendment 2. Ms. Kraly advised that the
department requests that it have an opportunity to look at this
issue more globally and more comprehensively and draft a future
legislative fix to address the background check, the background
requirements, or the employment qualifications for individuals
employed in DHSS. She explained that the global and
comprehensive review would be above and beyond the Health
Analytics and Vital Records Section because the department needs
a more robust employment review for people being hired, and that
would be accomplished outside of this amendment.
1:18:46 PM
REPRESENTATIVE LEDOUX asked Ms. Kraly whether she was willing to
work on this issue over the interim with her.
MS. KRALY answered that she "absolutely" would work with
Representative LeDoux.
REPRESENTATIVE LEDOUX advised that based upon those assurances,
withdrew Amendment 2.
1:19:05 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 3, labeled 30-
GS1676\D.2, Bruce, 4/25/18, which read as follows:
Page 1, line 3, following "information;":
Insert "relating to revocation of a driver's
license;"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 28.35.030(o) is amended to read:
(o) Upon request, the department shall review a
driver's license revocation imposed under (n)(3) of
this section and
(1) may restore the driver's license if
(A) the license has been revoked for a
period of at least 10 years;
(B) the person has not been convicted of a
driving-related criminal offense in the 10 years
preceding the request for restoration of the license
[SINCE THE LICENSE WAS REVOKED]; and
(C) the person provides proof of financial
responsibility;
(2) shall restore the driver's license if
(A) the person has been granted limited
license privileges under AS 28.15.201(g) and has
successfully driven under that limited license for
three years without having the limited license
privileges revoked;
(B) the person has successfully completed a
court-ordered treatment program under AS 28.35.028 or
a rehabilitative treatment program under
AS 28.15.201(h);
(C) the person has not been convicted of a
violation of AS 28.35.030 or 28.35.032 or a similar
law or ordinance of this or another jurisdiction since
the license was revoked;
(D) the person is otherwise eligible to
have the person's driving privileges restored as
provided in AS 28.15.211; in an application under this
subsection, a person whose license was revoked for a
violation of AS 28.35.030(n) or 28.35.032(p) is not
required to submit compliance as required under
AS 28.35.030(h) or 28.35.032(l); and
(E) the person provides proof of financial
responsibility."
Renumber the following bill sections accordingly.
Page 13, line 24:
Delete "This Act applies"
Insert "(a) AS 12.62.400(a)(19), enacted by sec.
1 of this Act, and secs. 3 - 25 of this Act apply"
Page 13, line 27:
Delete "secs. 3 - 10"
Insert "secs. 4 - 11"
Page 13, following line 27:
Insert a new subsection to read:
"(b) AS 28.35.030(o), as amended by sec. 2 of
this Act, applies to revocation of a driver's license
occurring before, on, or after the effective date of
sec. 2 of this Act, for conduct occurring before, on,
or after the effective date of sec. 2 of this Act."
REPRESENTATIVE KREISS-TOMKINS objected.
1:19:15 PM
REPRESENTATIVE LEDOUX explained that a constituent called her an
explained that is license was forever revoked, it was due to
"three strikes, you're out" for a DWI. Currently, she offered,
this person has been absolutely clean for 14 years, he has a
wife, two children, a house, and a business. Her constituent's
experience was that he had three DUI's and was then caught
driving while his license was revoked, and under those
circumstances, a person can never possess a legal driver's
license again. The Division of Motor Vehicles (DMV) advised her
staff that if this person was caught driving while under the
influence now, he could attend therapeutic court and once he had
completed its requirements, based upon a law passed a few years
ago there would be a path to licensure. Except, she advised,
this person does not want to be arrested for a DUI because he no
longer drinks, yet that would be required for him and the other
people in his situation to regain their driving licenses.
1:22:12 PM
GREG SMITH, Staff, Representative Gabrielle LeDoux, Alaska State
Legislature, opined that if someone's license was permanently
revoked, pre-Senate Bill 91 [passed in the Twenty-Eighth Alaska
State Legislature] "and yet, after the time of revocation
receives a driving related criminal offense, there is -- let me
back up. If this happened, I believe, pre-SB 91, pre -- there
is another pathway that SB 91 put in. And, if this had happened
prior to this time, in the case of the constituent it was 2002,
permanent revocation of a license, and then receives a driving
related criminal offense, our understanding from DMV and the
courts is that there is not a pathway for this person to ever
receive their driver's license. Except, in the case they said
to us, through going back to therapeutic court, which would
require them to be charged with another crime."
1:23:30 PM
REPRESENTATIVE KREISS-TOMKINS asked the Division of Motor
Vehicles (DMV) to confirm the statement of facts laid out in
association with Amendment 3.
1:24:04 PM
JAYSON WHITESIDE, Hearing Officer, Division of Motor Vehicles,
Department of Administration, advised that he has experience in
reviewing terminations or revocations for these felony DUI
offenders, and noted that everything Representative LeDoux
stated is correct. This issue has been a concern at the DMV for
a while and the division wanted this language to be included in
Senate Bill 91, but it never made it into the bill. He
commented that it is good to see this issue come forward.
1:24:36 PM
REPRESENTATIVE EASTMAN noted that the language being removed in
Amendment 3, is that now if a person has been convicted of a
driving related criminal offense, and their license was revoked,
and after their license was revoked they were convicted of
another driving related criminal offense, this provides a
pathway for a person to wait ten years and request that their
license be re-instated.
MR. WHITESIDE answered that in some of the instances seen at the
DMV, when an individual is convicted for a (audio difficulties)
DUI, during the ten years of their reviewed revocation they have
been convicted of a driving related criminal offense. Under
current law, that disqualifies the person from a termination of
revocation, and under Senate Bill 91, the only other pathway for
a person to get to re-licensure is to attend therapeutic court.
Mr. Whiteside explained that proposed Amendment 3 basically
creates a sliding window wherein "they may have a person
committed a driving related criminal offense, but since it's
just within ten years prior to their application, they can wait
until they serve ten years without a driving related criminal
offense."
1:26:10 PM
REPRESENTATIVE EASTMAN asked whether there are parameters on
this, for instance if a person, as part of that driving related
criminal offense after their license was revoked, actually
killed someone. He further asked whether that person would
still be eligible under this amendment for the sliding window he
spoke of, or whether that is precluded by something else.
REPRESENTATIVE CLAMAN asked whether Representative Eastman was
referring to a person killing someone in a driving related
offense.
REPRESENTATIVE EASTMAN said he agreed with Chair Claman's
clarification.
MR. WHITESIDE responded that there is nothing in this that would
prevent that because it is black and white driving related
criminal offense. What "we're actually terming is a felony
DUI." There would have to be a license removal from a separate
charge, (audio difficulties) kill or manslaughter, those sort of
things, vehicular homicide where the license has been removed.
He related that if it is just a felony DUI, those merits don't
take course in any of the review process.
1:27:11 PM
REPRESENTATIVE REINBOLD commented that she has heard that many
people drive while under the influence and many people are not
caught. She asked how many times people drive while dangerously
under the influence, and how many times do they drive before
they are actually convicted.
MR. WHITESIDE answered that obviously that is a hard number to
nail down because without the person actually being arrested and
charged with an offense, there are no numbers. From what he has
seen statistically, he said that for those people driving with
their license revoked or charged with a subsequent DUI, it takes
place within a few years after their original offense.
Typically, he offered, the event takes place closer to the
action because they had not yet received the help they needed.
1:28:18 PM
REPRESENTATIVE REINBOLD commented that "it sounds too bad to be
true" with regard to the fact that if someone decides to "clean
their act up" and their license is permanently revoked, yet
under current law, they have to get drunk again and do something
stupid in order to have a pathway to licensure. She asked
whether it is true that a person must go out and commit "another
act," and whether their previous history still comes into play.
MR. WHITESIDE confirmed that what is being said is true. Under
current law, in order for the person in a situation where their
revocation cannot be terminated, they would have to be arrested
for a felony DUI, and go through the therapeutic court path in
order to obtain re-licensure.
REPRESENTATIVE REINBOLD commented that that is absolutely an
unbelievable mess.
1:29:40 PM
REPRESENTATIVE EASTMAN commented that he is slightly sympathetic
for the person who has pulled their life together, and for the
person who at no fault of their own, wound up in this situation.
He remarked that just this month a person killed someone in one
of the most heinous acts his district has experienced ever, and
someone did die. He opined that his district would like to know
that the person behind the wheel that killed the young lady, who
still had a blood alcohol content of over .3 more than three
hours after he killed her, will not ever receive a license
again. He related that because he does not see that in this
amendment as currently written, he is opposed to Amendment 3.
1:31:02 PM
REPRESENTATIVE KOPP said that he echoes a lot of the sentiment
expressed by Representative Eastman, but there is a distinction
between the person going through a period of their life
suffering from substance abuse issues and receiving their third
moving violation DUI, without any instance of personal injury or
death. For those folks who have taken all of the steps to show
they are trustworthy and able to handle that responsibility,
there is wisdom in having insured drivers on the road versus
uninsured. Many of these folks choose to drive to work and are
uninsured, thereby putting the rest of us at risk. While he is
empathetic, he said, in helping certain people get on the
stringent and hard path back unless the person's actions caused
harm or death to anyone because part of feeling the pain of
their victims is permanently losing their driving privileges.
He offered that he does not think Amendment 3 gets at that
differentiation and he would be happy to help work on that
issue.
1:32:39 PM
REPRESENTATIVE KREISS-TOMKINS said that he echoes Representative
Kopp's comments and that this issue puts him in mind of
Representative Stutes [HB 259] unsecured loads bill. It was his
recollection, he said, that the committee wanted to keep the
distinction between someone being maimed or suffering bodily
damage due to an unsecured load that flies off of a vehicle
versus a dented bumper because a rock flew off of a load. Those
are two distinct circumstances and correctly should be treated
differently. In this instance, there are DUIs wherein someone
is hurt or killed, and there are DUIs within which that does not
take place, he remarked. There is some value in that
distinction, he commented, but he likes the overall thrust of
Amendment 3 because it gets at an inconsistency in the law.
1:33:51 PM
REPRESENTATIVE REINBOLD commented that she is never a fan of an
amendment due to one person, "it always just chaps me, and it
just reminds me of (audio difficulties) and trying to get that
sex offender, you know, amendment in Senate Bill 91, you know,
based on one friend of hers." In the event someone receives a
third DUI, how many times have they been driving drunk, risking
Alaskans, risking innocent babies and mothers in their cars, she
asked. Alaska currently suffers from a horrible substance abuse
problem, the state needs to get tougher, not weaker, and she
will be a no vote on Amendment 3.
1:34:33 PM
REPRESENTATIVE STUTES asked Representative Kopp whether he had
made an offer to the maker of this amendment wherein he would
help refine the terms as to the type of [driving related]
violation a person had, whether it was just a DUI with no bodily
injury as opposed to a DUI causing severe bodily injury or
something along that line.
REPRESENTATIVE KOPP advised that he had drawn the distinction
that the conversation is worth having if personal injury or
death was not involved in the factors that lead to the felony
DUI in the first place. He stated that he is all for having a
stringent path to licensure, whatever the time period, because
he believes that giving certain individuals a path back and a
chance for restoration is important. He reiterated that if a
person has committed certain acts against people and harmed
them, then that is part of feeling the pain of their victims and
the person earned the right to not have a license for the rest
of their life. The balance in there is something he is willing
to look at, but the amendment does not get the committee to that
balance, he suggested.
REPRESENTATIVE STUTES commented that she would be happy to work
on something in that direction over the interim.
1:36:14 PM
CHAIR CLAMAN commented that some of the questions
Representatives Kopp and Eastman raised might be issues about
distinguishing what occurred in the DUI, but it may be beyond
the scope of Amendment 3. He opined that it may require a much
more detailed statutory change.
1:36:41 PM
REPRESENTATIVE LEDOUX suggested that the committee hold this
bill for one day in order to determine whether Representative
Kopp and she could come up with an amendment that satisfied
everyone's concerns.
1:37:04 PM
The committee took an at-ease from 1:37 p.m. to 1:38 p.m.
1:38:14 PM
REPRESENTATIVE LEDOUX withdrew Amendment 3, and related that she
will work on this issue during the interim. Except, with
respect to Representative Reinbold's comments, she argued that
while one of her constituents brought this issue to her, it
affects many other people who are similarly situated and it is
not solely for one constituent.
1:39:35 PM
REPRESENTATIVE KOPP asked Ms. Kraly whether an ex parte domestic
violence protection order would qualify as a barrier condition,
as separate from the long term domestic violence protection
order.
MS. KRALY deferred to Margaret Brody, and offered that she does
not believe the ex parte domestic violence protection orders are
part of the barring condition because the person would have had
to have been convicted of a crime of domestic violence for it to
be a barring crime or condition.
1:40:12 PM
MARGARET BRODIE, Director, Division of Health care Services,
Department of Health and Social Services (DHSS), responded to
Representative Kopp's question regarding ex parte domestic
violence protection orders, and advised that Ms. Kraly was
correct, they are not counted. (Audio difficulties.)
CHAIR CLAMAN surmised that a long term domestic violence
protection order would not count as any sort of a barrier.
MS. KRALY answered that Chair Claman was correct.
1:41:26 PM
REPRESENTATIVE KOPP referred to CSSB 81, Section 8, [AS
47.05.310] page 4, lines 5-14, which read as follows:
AS 47.05.310 is amended by adding a new subsection to
read:
(l) A person is presumed to be acting in good
faith and is immune from civil or criminal liability
if the person
(1) makes a report of medical assistance
fraud, abuse, neglect, or exploitation;
(2) submits information to a civil history
database identified under AS 47.05.330; or
(3) fails to hire or retain an employee or
unsupervised volunteer because the employee or
unsupervised volunteer is included in a civil history
database identified under AS 47.05.330.
REPRESENTATIVE KOPP asked whether this subsection would allow a
person who is guilty of the above, but in making the report
would be alleviate from their culpability.
MS. KRALY answered, "No."
REPRESENTATIVE KOPP offered a scenario where the person made the
report except they falsified the report or they did not use good
candor and painted a bad picture through (indisc.), are they
still immune.
MS. KRALY asked Representative Kopp to restate his question.
1:43:14 PM
REPRESENTATIVE KOPP offered that his question relates to AS
47.05.310. Criminal History; Criminal History Check; Compliance.
Under current law, AS 47.05.310(a) read as follows:
(a) If an individual has been charged with,
convicted of, found not guilty by reason of insanity
for, or adjudicated as a delinquent for, a crime that
is inconsistent with the standards for licensure or
certification established by the department by
regulation, that individual may not own an entity, or
be an officer, director, partner, member, or principal
of the business organization that owns an entity. In
addition, an entity may not
(1) allow that individual to operate the
entity;
(2) hire or retain that individual at the
entity as an employee, independent contractor, or
unsupervised volunteer of the entity;
(3) allow that individual to reside in the
entity if not a recipient of services; or
(4) allow that individual to be present in
the entity if the individual would have regular
contact with individuals who receive services from the
entity, unless that individual is a family member of
or visitor of an individual who receives services from
the entity.
REPRESENTATIVE KOPP then referred to CSSB 81, Section 8, [AS
47.05.310] page 4, lines 5-14, which read as follows:
AS 47.05.310 is amended by adding a new subsection to
read:
(l) A person is presumed to be acting in good
faith and is immune from civil or criminal liability
if the person
(1) makes a report of medical assistance
fraud, abuse, neglect, or exploitation;
(2) submits information to a civil history
database identified under AS 47.05.330; or
(3) fails to hire or retain an employee or
unsupervised volunteer because the employee or
unsupervised volunteer is included in a civil history
database identified under AS 47.05.330.
1:44:13 PM
REPRESENTATIVE KOPP surmised that clearly reports are encouraged
by offering a person immunity. He asked that if the report
contains false information in a portion of the report, or its
entirety, or in some other manner that Department of Law (DOL)
finds is clearly lacking candor in the report, whether that
immunity is still there or is it a judgment call on the part of
the DOL.
MS. KRALY responded that the immunity provisions in this section
relates to the submission of information to the department for
purposes of a background check. Therefore, if someone submitted
information to the department that was not totally above-board
or truthful ...
CHAIR CLAMAN recognized Representative Les Gara and
Representative Scott Kawasaki.
1:45:53 PM
MS. KRALY responded that if a person submitted patently false
information or misrepresented information, those immunities
would not apply because the immunity is based upon a good faith
application of the submission of information. In the event a
person is playing fast and loose with that information, those
immunities would not apply, she advised.
1:46:32 PM
REPRESENTATIVE EASTMAN asked, at what point would an omission of
relevant details in the report surpass the criminal and civil
immunity being given to that person. He further asked the
standard against which those omissions would be weighed.
MS. KRALY replied that she was unsure she understood his
question.
REPRESENTATIVE EASTMAN asked how much relevant information could
be omitted before it would trigger that the person was no longer
immune under Sec. 8.
MS. KRALY opined that the standard would be one of materialism,
a substantial material of omission. She offered that people
submit information with honest errors and honest mistakes and it
would have to be material and significant to the issue within
the report before it would trump that immunity.
1:47:49 PM
REPRESENTATIVE EASTMAN asked where that standard is located.
CHAIR CLAMAN asked whether he meant the materiality standard.
REPRESENTATIVE EASTMAN said that he did mean the materiality
standard and where it is defined.
MS. KRALY answered that when reviewing the overall immunity
information, it is under AS 47.05.350, and it is a common law
standard.
CHAIR CLAMAN assured Representative Eastman that there is a
fairly substantial body of federal common law and he was unsure
how much state common law was available. On a federal level,
there is an enormous body of common law regarding the definition
of materiality and its application. He remarked that the
committee would not want to try to summarize those in a
definition here.
1:48:29 PM
REPRESENTATIVE REINBOLD said that she wanted to compliment Ms.
Kraly because "you are so composed and so focused amongst all of
the distractions, and it just amazes me, so good job for that
... I just wanted to thank you for really helping us understand
this issue."
MS. KRALY answered, "You are welcome."
1:49:58 PM
REPRESENTATIVE EASTMAN noted that this is a bill dealing with
background checks for the department, he asked why the
legislature would need to come back next year with another bill
dealing with background checks for the department when it is
already known that it is an issue that is bigger than simply
vital records. He asked that the committee hold the bill for
one day because ...
CHAIR CLAMAN instructed Representative Eastman to make comments
related to the bill ...
REPRESENTATIVE EASTMAN interrupted and said that he suspects the
legislature will be in session past tomorrow and there is some
interest in working further on [Amendment 3], and he would
support that effort.
1:51:36 PM
REPRESENTATIVE KREISS-TOMKINS moved to report CSSB 81, labeled
30-GS1676\D, as amended, out of committee with individual
recommendations and the accompanying fiscal notes.
REPRESENTATIVE EASTMAN objected.
1:51:57 PM
A roll call vote was taken. Representatives Kopp, Stutes,
LeDoux, Kreiss-Tomkins, Reinbold, and Claman voted in favor of
the passage of CSSB 81 out of committee. Representative Eastman
voted against it. Therefore, CSSB 81(JUD) was reported out of
the House Judiciary Standing Committee by a vote of 6-1.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB081 ver D 4.25.18.PDF |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Transmittal Letter 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Sectional Analysis ver D 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Amendments #1-3 4.26.18.pdf |
HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Amendments #1-3 HJUD Final Votes 4.26.18.pdf |
HJUD 4/26/2018 1:00:00 PM |
SB 81 |