Legislature(2001 - 2002)

04/15/2002 01:57 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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).                                                                                                                 

Document Name Date/Time Subjects