Legislature(2017 - 2018)BUTROVICH 205
02/02/2018 01:30 PM Senate HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| SB128 | |
| SB81 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 81 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 128 | TELECONFERENCED | |
SB 81-DHSS CENT. REGISTRY; LICENSE; BACKGROUND CHECK
1:40:16 PM
CHAIR WILSON reconvened the meeting and announced the
consideration of SB 81 and opened public testimony. [SB 81,
version 30-GS1676\A, was before the committee.]
1:40:56 PM
STACIE KRALY, Chief Assistant Attorney General, Department of
Law, presented information on SB 81. She said SB 81 relates to
criminal background checks and licensing statutes administered
by the Department of Health and Social Services (DHSS).
Participation in federal programs, such as Medicare and foster
care, requires states to conduct criminal background checks for
licensure or payment for services. In 2005, the legislature
codified AS 47.05.300, which requires a background check for all
persons who are paid in whole or in part by DHSS. The background
check is comprised of a two-part process, a fingerprint-based
review of criminal history, both state, federal, and nationwide,
administered by DHSS with the Department of Public Safety. It
also consists of checks of various databases to identify civil
actions that are inconsistent with licensure or the ability to
provide care to vulnerable adults or children.
She said that over the past 15 years, many language issues have
been identified that that need to be fixed in statute.
She said SB 81 clarifies what constitutes a civil history check.
State law references two registries, a Central Registry and a
Centralized Registry, which is very confusing. The bill also
clarifies that the civil history check applies to both the
entity that seeks licensure by DHSS and to its employees.
MS. KRALY said a gap in the language does not make it clear that
the employees are also subject to a civil history check. It
also clarifies that the department is not required to create
standalone database. The statute intimates that DHSS will create
its own civil history database, which is cost prohibitive and
programmatically difficult. The statute should make clear that
DHSS is not creating its own database but reviewing existing
databases.
She said SB 81 makes amendments to Title 47 Chapter 32,
licensing statutes in DHSS. It allows DHSS to share information
with law enforcement on concurrent investigations.
1:45:36 PM
MS. KRALY said the amendments allow divisions doing licensing
investigations to share information among themselves.
She said one of the most important things that SB 81 clarifies
is that if an individual abuses, neglects, or exploits an
individual in care, the individual, and not only the entity, can
be subject to investigation. For example, if someone employed in
an assisted living home abuses or neglects an individual in
care, only the licensed entity, the assisted living home, can be
investigated. The bill allows individuals to be investigated and
if it is determined that the individual committed the offense,
the person's name will be in the civil registry.
SENATOR VON IMHOF said past audits suggested that the Department
of Education and Early Development (DEED) is duplicating efforts
in its background checks for teachers because other departments
do background checks. She wondered why efforts across
departments could not be combined so one department does all the
background checks.
1:48:43 PM
KATHY MONFREDA, Chief, Criminal Records and Identification
Bureau, Department of Public Safety, presented information on SB
81. She said having one central background check for a variety
of purposes violates the FBI's law on how national background
checks can be used. They must have one authorized statutory
purpose.
SENATOR VON IMHOF asked if she were referring to a federal
statute.
MS. MONFREDA said yes, it is public law 92-544 that governs
national background checks.
SENATOR VON IMHOF asked if that meant that the exact same
background check is done in multiple departments.
MS. MONFREDA said most of the agencies have different criteria
for their licensing, so it is not one size fits all. The
background check is only good the day that it is received. Any
delay in using a background check could be a risk.
SENATOR VON IMHOF said she is not suggesting doing a background
once and then being done with it. She is suggesting centralizing
background checks among all state employees, but she understands
a statute prohibits that.
MS. MONFREDA said 92-544 permits shared information for the same
purpose.
1:52:12 PM
MS. KRALY presented the sectional analysis.
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 47.05.310(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 concurrent
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.
1:58:44 PM
CHAIR WILSON said that on page 10, Section 20, starting from
line 10, he did not see language specifying that sharing
information would only be for concurrent investigations and that
licensing would not be sharing past information on a provider.
He asked if that could be clarified.
MS. KRALY said that she read that [if a law enforcement agency]
"is investigating a crime that is also the subject of a
licensing investigation" as being a concurrent investigation.
But an amendment with clarifying language would be appropriate.
CHAIR WILSON asked whether people with variances can transfer
them more easily through the system.
MS. KRALY said that regulations that amended the existing
statute went into effect August 1, 2017. The regulations
reframed the variance process, created an expedited variance
process, and created a system for people with variances who
provide similar services, but work for various agencies, to use
the same variance for multiple agencies.
2:01:06 PM
CHAIR WILSON opened public testimony on SB 81.
2:01:29 PM
KATE BURKHART, Ombudsman, Alaska Office of the Ombudsman,
commented on SB 81. She said the Ombudsman's Office is a
nonpartisan, independent, and objective organization that
investigates citizens' complaints about state agencies.
Information about SB 81 is meant to inform processes, not
necessarily to advocate for the Ombudsman's recommendations.
She referenced a 2016 investigation and report about how
background checks affect people as they try to secure a
caregiving position. The background check is essential for
people providing care to vulnerable Alaskans. Ms. Kraly said
background checks rely on existing registries of information and
a not a standalone database or registry. SB 81 provides clarity
that this is a background check program that uses existing
sources of information.
2:04:00 PM
MS BURKHART said SB 81 speaks to standards related to civil
barriers. All her comments are about civil barriers because the
report did not look at criminal barriers. A substantiated report
of harm, child abuse or neglect, is used as basis for a civil
barrier, but often reports of harm can be substantiated without
a-child-in-need-of-aid proceeding being initiated. Parents do
not always challenge the report without realizing that up to 10
years later, they can be barred from caregiving employment.
She said Alaskans need adequate notice about the impact of
substantiated reports of harm and how it could impact the
ability to pass a background check for 10 years.
She said the Ombudsman's investigation explored how people apply
for variances if they need access to information in a child
protection record, which is now closed. To have a meaningful
opportunity at a variance requires access to that information.
SB 81 provides clarity about providing that access. Through its
work, the Ombudsman's office understands how critical this
program is.
SENATOR GIESSEL asked if the department is looking at these
suggestions.
MS BURKHART said the regulations regarding background checks,
adopted last year, were a big overhaul. The regulations have a
tiered approach to civil barriers. The department had said they
would use the regulatory process to address previous concerns of
the Ombudsman's Office. Ms. Burkhart added that SB 81 still
refers to a registry when there is no registry. Background
checks use existing lists.
2:08:47 PM
CHAIR WILSON closed public testimony on SB 81.
MS. KRALY said she reviewed Ms. Burkhart's letter and has taken
it to heart. Their goal is to improve the program and clarify
language and remove confusion. They will continue to work with
the Ombudsman's Office to improve bill. There are policy
considerations and differences they may not agree on, and the
legislature will decide on policy.
SENATOR GIESSEL asked her to discuss an amendment offered on the
House version of the bill.
MS. KRALY said it was a conforming edit related to removing the
reference to criminal justice agency. She deferred further
explanation to Ms. Monfreda.
MS. MONFREDA explained that it was a housekeeping issue because
federal law spells out what must be in legislation for the
Attorney General's approval of state statutes that seek approval
of national background check results. The amendment makes sure
that Alaska statutes meet the federal requirements.
2:12:43 PM
SENATOR GIESSEL asked if the amendment offered on the House side
would need to be amended into the Senate version.
MS. MONFREDA said yes.
CHAIR WILSON asked if DHSS intended to refine SB 81 before
bringing it back to committee.
2:13:22 PM
MS. KRALY said yes.
SENATOR VON IMHOF asked if DHSS would incorporate the conforming
amendment into the committee substitute so no amendment would be
needed.
MS. KRALY said yes.
2:13:42 PM
CHAIR WILSON said he would hold SB 81 in committee while the
department worked on it.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB128 vsn A.PDF |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Sponsor Statement.2 1-17-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Sectional Analysis 1-17-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Supporting Document Power Pt- DHSS 1-16-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Support Letter Sampson 1-5-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Support Letter NAACP Anchorage 1-27-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB128 Letter of Support DHSS 1-22-18.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB0081A.PDF |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| SB081 Governor Transmittal Letter.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| SB081 Sectional.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| SB081 Supporting Documents - FAQS on DHSS Background Checks.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| SB081 Supporting Documents-Proposed Background Check Process.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| HB162 SB81 - FAQs 050317.pdf |
HHSS 2/20/2018 3:00:00 PM SHSS 2/2/2018 1:30:00 PM SHSS 3/16/2018 1:30:00 PM |
HB 162 SB 81 |
| HB162 SB81 - Sectional 050317.pdf |
HHSS 2/20/2018 3:00:00 PM SHSS 2/2/2018 1:30:00 PM |
HB 162 SB 81 |
| SB 128 DHSS FN.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB 128 DHSS Behavioral Health FN.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |
| SB 81 Alaska Ombudsman Letter.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| Ombudsman Complaint A2013-0776.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 81 |
| HB 162 amendment Dept of Public Safety (SB 81) 30-GH1676 A.1.pdf |
HHSS 2/20/2018 3:00:00 PM SHSS 2/2/2018 1:30:00 PM |
HB 162 SB 81 |
| SB 128 - Letter of Support Boys and Girls Club.pdf |
SHSS 2/2/2018 1:30:00 PM |
SB 128 |