Legislature(1999 - 2000)
03/16/1999 03:05 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 15 - FOSTER PARENT RIGHTS TO DISCLOSE INFO CO-CHAIRMAN DYSON announced the next order of business as House Bill No. 15, "An Act relating to disclosure of information about certain children; and amending Rule 22, Alaska Child in Need of Aid Rules." He called on Representative Rokeberg's aide Janet Seitz to present the bill. Number 2095 JANET SEITZ, Legislative Assistant to Representative Norman Rokeberg, said HB 15 would allow foster parents to discuss matters with their legislator or other public officials about the foster child. It is a breach of confidentiality to do this now and can put their foster care license at risk. She cited a case where a foster parent felt that the reunification plan proposed by the Division of Family and Youth Services (DFYS) with the natural parent would put the child in danger. She tried to work through the division and the department but didn't get any satisfaction and finally went outside the department to get help to stop this reunification plan. In this instance the foster parent was right, and the division only paid attention when the attorney for the guardian ad litem called. This bill would allow the foster parents to come to the public official, but then the public official is bound by confidentiality rules. There is an amendment in the packet to add "and their families" to the bill. Number 2187 REPRESENTATIVE BRICE asked if HB 15 follows the guidelines for restrictions on confidentiality of the Title IV-E funds the state receives from the federal government for children in its care. MS. SEITZ answered that she didn't research the Title IV-E guidelines, but this is only to a narrow group of public officials who are defined in the bill. Number 2227 REPRESENTATIVE BRICE said it was not illegal, but it might jeopardize those federal funds. TAPE 99-20, SIDE B Number 2268 REPRESENTATIVE GREEN wondered whether modifications to not jeopardize funds should be made now or wait for the judiciary committee. REPRESENTATIVE ROKEBERG said that when they discussed this with the foster parent about the needs and problems of this child and family, the threat of potential retaliatory action by the department was there. There is written evidence in their files that there have been actions taken against this individual by the department, and that has a chilling effect on the ability of a foster parents to do their job. It is important for foster parents to be able to reach out to their elected officials, when they have difficulties with the department, to seek aid, advice and counsel for a child in these types of circumstances. Number 2138 CO-CHAIRMAN DYSON said present law allows a legislator to view the files at DFYS on any child in state custody. He asked Representative Rokeberg, in addition to that information, if he wants legislators to be able to discuss the disposition of a child with the foster parents themselves. REPRESENTATIVE ROKEBERG answered that is correct. RUSS WEBB, Deputy Commissioner, Department of Health and Social Services (DHSS), came forward to testify and stated the department's opposition to the bill as it stands right now. They recognize the importance of foster parents as part of the team that works with the DHSS in serving children and families, and the need for foster parents to have information about the children who come into their care, but this bill presents several problems. It doesn't just enable foster parents to discuss issues with a legislator relating to their concerns about agency action; it enables the foster parents to disclose confidential information about the children in their care, past and present, and those children's families. That violates the rights of the families and children involved to allow someone else to make decisions about disclosing private information. This bill would allow disclosing all information contained in the department's files which could include psychological or psychiatric evaluations. He said that a few years ago, the legislature allowed parents to release information about themselves or the child to legislators to discuss matters. This bill goes way beyond that; it now allows a third party to release information about that parent and that child to other people. MR. WEBB said another problem is the fact that they would be out of compliance with the federal requirements for the Title IV-E money. It requires that they must maintain information about people in confidence unless those folks have agreed to disclose that information. He pointed out that in violating the requirements of Title IV-E they would forfeit some $12.5 million. If foster parents have complaints or issues about the division, they can bring those matters forth; but being able to release information about others is a separate matter. MR. WEBB gave an extreme example of what could occur under HB 15. The foster parent who was recently charged and convicted with murdering a child in foster care would, if this bill were passed now, be authorized to release information about the child and the child's family to a legislator, without their permission. He thinks this is not the intent of the sponsor, but it indicates some severe problems which make it impossible for the DHSS to support HB 15 at this point. Number 1909 CO-CHAIRMAN DYSON asked what does the foster parents know about the birth parents or previous custodial parents except what the child might tell them or what the DHSS might tell them. MR. WEBB confirmed that is the information that they would know. The bill would enable them to disclose not just that information, but all information contained in department files. Number 1875 CO-CHAIRMAN DYSON said foster parents don't have all the information in department files, and the department doesn't tell foster parents all the information on the birth parents so he doesn't understand his comment. MR. WEBB answered that under HB 15 they would be required to make that information available if the foster parents wanted to authorize it. If the legislator came to the department, they are now mandated, whether the parent or child likes it or not, to provide that information to the legislator. Number 1839 REPRESENTATIVE BRICE commented there are limitations of what the legislator can do with the information. The legislator cannot disseminate that information back to the foster parents, and there might need to be stiff penalties on a legislator if that information was leaked. He isn't sure about Mr. Webb's concern how this information gets disseminated. He said if a legislator was asking for some information on a case, he wouldn't expect to ask for the whole file. He asked Mr. Webb if it would help if that is clarified. Number 1769 MR. WEBB said they understand that legislators are bound by maintaining the information in confidence, but the bill as written says "inspect any and all information in the file." The other issue is that a third party now can authorize disclosure of very private information about another person without that person's right to authorize it. Even with the limits on the disclosure as Representative Brice mentioned, he thinks they would run afoul of federal law. REPRESENTATIVE BRICE asked for more background on the restrictions of Title IV-E and how it would be applicable to HB 15. He said his understanding is that the state has custody of the child in foster care, so in fact, the parents have given up much authority over what happens with that child. MR. WEBB said that certainly the parents' authority is limited by the court which placed the child in the department's custody, but the parents retain many inherent rights to protect their own confidential information, and they also retain rights to the child until those are terminated. While the child is in custody, the parents lose the ability to determine where the child lives and with whom and other kinds of things, but they do not lose their parental rights until those are terminated by the court. Number 1644 REPRESENTATIVE ROKEBERG said the intent of the legislation is to allow discourse between the constituent and the legislator or elected official. His desire is not to reach out into files, but to prevent getting stonewalled by the department when seeking information. He said most information foster parents have, has been acquired through the child or from visitations with the natural parents. It is during visitations that the foster parents see the activity or the condition of the natural parent and calls into question the ability of that natural parent to undertake their job of parenting. Number 1558 MR. WEBB said Representative Rokeberg was right in that there are instances where families fail to implement successfully a case plan. For example, relapses do occur in substance abuse cases, and children end up returning to foster care from home. The department does not want to see children bounced from foster home to foster home, however, neither is it the intent to see custody battles between foster parents and natural parents about issues played out in legislator offices on a regular basis. There are many checks and balances when the department makes a judgement about returning a child home. The guardian ad litem is the attorney for the child and looks out for the child's interest, and the court is another option. Certainly there is not perfection in the process, but he believes there are other avenues for addressing those issues than what is proposed in HB 15. For a variety of reasons, he is opposed to the bill; however, he is not opposed to solving the problems. Number 1458 CO-CHAIRMAN DYSON asked Representative Rokeberg and Mr. Webb to consider on page 1, line 12 if that could be modified where it says, "The department shall disclose additional confidential or privileged information about the child and make copies of all documents in the file about the child available for inspection to these state officials" and so on, would inserting the phrase "subject to the limitations required in Title IV-E of federal regulations" or if there are necessary modifiers there that could make sure that confidential information about the birth or custodial parents of the child is not improperly disclosed. REPRESENTATIVE KEMPLEN asked if that is the language which causes the department problems. Number 1378 MR. WEBB answered that is a good portion of it, but it is the disclosure of confidential information without the person's authorization. REPRESENTATIVE BRICE asked if foster parents currently can talk to a legislator about a child in their care. MR. WEBB said they certainly can discuss their grievances about departmental action and other things without releasing confidential information. REPRESENTATIVE BRICE confirmed that confidential information is the key point here. He asked if the child has come back to that foster parent many times, can the foster parent tell the legislator that there is a problem. He assumes that confidential information is when either the permanency planning review is not taking place, or the department is not taking appropriate steps to ensure the stability of the child's life. Number 1291 MR. WEBB said information about departmental action is not confidential. Specific information about the child like the name, the family's name, the case plan and those kind of things would potentially be confidential. He added there are a variety of checks and balances and forums in which those issues can be appropriately raised and dealt with. One is the foster care review process which is the court process where foster parents now have the right to be present and heard by the court, made possible by HB 375, as well as going to the social worker and guardian ad litem to raise the issue of appropriate actions in a case and whether the department is acting properly. REPRESENTATIVE KEMPLEN referred to page 1, (d), line 6 where it says: "may disclose confidential or privileged information about the child", and asked if that would be adequate enough for sharing of information between the department and a legislator. MR. WEBB said he would like to spend some time analyzing that. It appears that is the key phrase that allows a foster parent to disclose confidential information about the child. That would be disclosure by a foster parent rather than the department. Number 1150 REPRESENTATIVE ROKEBERG said there are two different thrusts of the bill. One is to allow the foster parent to talk to the elected official, the attorney general or the ombudsman, and the second is the relation of information filed by the department. The department raises a valid point on the second item regarding their ability under federal law to be able to make their revelations, however, he thinks they could overcome any problems so they wouldn't be in the position to forfeit the federal money. It seems to him that the attorney general, the legislators, ombudsman and other members of the state are the last resort. Not withstanding Mr. Webb's recitation of the appeal procedures available to a foster parents, he thinks they are very inadequate. The facts and complaints received from people throughout the state indicate that to be the case. Representative Rokeberg said he thinks that because of HB 375, where the state made a substantial policy change giving more power to DFYS, this kind of legislation is all the more important. He asked who will look after foster parents and the children if there are difficulties dealing with the DHSS; he thinks foster parents should be allowed to make disclosures. Number 1004 CO-CHAIRMAN DYSON said HB 375 went into effect September 1998 and does provide by law a place and voice in court for foster parents. It provides them with previous information about the child's behavior problems and criminal activity. It seems to him that the foster parent review process is not doing as well as it could due to lack of support and funds. It was a review and appeal board; where it worked, it worked well. The process is working imperfectly; DFYS has had problems, but there is the impression that they are making strides to deal with the problems, and there is some significant hope for progress. Number 0897 SARAH SHORT, President, Families First Partnership, testified from Anchorage via teleconference. She said that foster parents definitely need to be able to seek help from legislators outside of the agency. This is an external protection, and the families and children need it. She referred to Mr. Webb's comments about parents retaining most inherent rights to privacy and not losing parental rights until terminated in court, and said she has found that to be overwhelmingly untrue and has more than 700 people willing to back this up. She finds HB 15 good in that it allows foster parents to talk to state agencies, but she mentioned that there are other independent agencies that might be good community resources. MS. SHORT said she thinks that it would be a good idea to include representation by people that are affected by the system, not just input from the state agencies. Parents must be allowed to defend themselves against allegations that arise from the foster parents; maybe a foster parent is bringing up allegations because they want to adopt these children. All the factors must be looked at. She encouraged the committee to re-evaluate this bill, go forward, expand on it and get the input of those people affected, not just the people at the state who are involved. Number 0729 REPRESENTATIVE BRICE asked Ms. Short if she was aware that if a legislator makes an inquiry on her behalf that he/she cannot, by law, give her any type of information that he/she might have found out. He had assumed from her testimony that she wanted to get that information. MS. SHORT said she is aware of that breach of confidentiality protection for the DFYS, but she is also aware that confidentiality has been increasingly protective of the agency and not the child. She is appalled that they would consider the fact that they would lose millions of dollars and not consider the fact it is affecting the child, families and communities. REPRESENTATIVE BRICE said the point is that HB 15 restricts the legislator from disclosing any information that they receive. MS. SHORT said she did understand that. She went on to ask why CASAs [court-appointed special advocates] aren't included, because they have just as much valuable information about the child possibly as the foster parent. Number 0498 BETTY ROLLINS testified from Fairbanks via teleconference. She said that anyone with any information of interest on a child should be able to talk to the legislators if he/she can't talk to DFYS. She asked for clarification on the amendment. She is frustrated that they are more concerned about losing federal funds than with the children. There are about 2,000 children in foster care in Alaska, and she thinks that is too many; they should start looking at getting these kids back into their families. She said she believes HB 15 would probably be a good law, and that she believes legislators will maintain confidentiality. Number 0335 CO-CHAIRMAN DYSON said certainly what they put in law last year makes reuniting the birth families, or placing the children with family members, the highest priority. That is the goal and how well it works remains to be seen. Number 0318 SCOTT CALDER testified via teleconference from Fairbanks. He disagreed with Co-Chairman Dyson's last statement but concurred with and extended his gratitude to Sarah Short for her remarks. In addition to the 700 people that she believes that she can find to support her testimony, he thinks he could find another 300 in Fairbanks who would agree with this legislation. MR. CALDER stated, "When I initially saw the sponsor statement for this, I was a little suspicious because the language of this talks about situations where the evil parents are getting the upper hand because of some mistake that the department's making and, you know, foster parents to the rescue and all of that. Well, in fact, biological human families have been terrorized in this state for over a decade, as most of you who have been in the legislature know for a while. For the record, my own son was kidnaped and tortured by agents of the state on April 9, 1993 and is currently missing in Fairbanks somewhere. I don't know where he is. Although he is an adult now, his life has basically been ruined under the Knowles Administration. He was subjected to drug experiments, isolation, desensitization, indoctrination and false integrating beliefs about himself, his family and his community. And I'm a witness to the terrorism that has been exacted upon the families of Alaska at least since the time of my direct experience with that. And I've researched this problem in its historical context, and I find it's reprehensible that the legislature did not add last year, as we requested and as we have been requesting every year and so I agree with HB 15, and I think it's just too bad that this is all you can do after so many years. ... I agree with Ms. Rollins that reasonable people can be discreet about their problems as long as they're not exposed to prior restraint and the threat of physical reprisal and damage to their children under a color of law. And forget about the 12 million. You got 2,000, and they're each worth 12 million." TAPE 99-21, SIDE A Number 0022 CHRIS HUTCHISON, President, Voice for the Children Foster Parent Support Group, testified from Kenai via teleconference. She agrees with what Representative Rokeberg said that the bill would serve to help the foster parents and avoid stonewalling and repercussion from the department. There are no means for grievance for foster parents. She is pleased and grateful to Representatives Rokeberg and Dyson for bringing up this legislation because the foster parents need an ombudsman or legislator that they can talk to. Someone besides the department needs to know what is going on with these kids. She encouraged everyone to support this bill as far as it meets the Title IV-E requirements. This bill will help them help the children. Number 0198 MARCI SCHMIDT testified from Anchorage via teleconference. She said foster parents desperately need to be allowed to talk about things that may potentially be harmful to children after they have exhausted their resources with DFYS. The Adoption of Safe Families Act 1997, which was the basis for some of HB 375, certainly wanted to give foster parents a voice in the concerns of the children in their custody when they are in danger. Unfortunately all too many times the DFYS is not providing services to foster parents. During the testimony for the Adoption for Safe Families Act, a foster parent from Nebraska came and testified, but upon returning home, his foster child was immediately seized and taken away simply because he testified to a federal commission about what goes on as a foster parent. Foster parents need to have some alternatives when they are not getting help in state agencies. MS. SCHMIDT wishes that when information is disclosed to legislators that they would be allowed to get back to the person who has requested it so they know that something is being done." She said it is too bad there are not other resources to provide something to foster families. This needs to happen. Number 0371 JAN RUTHERDALE, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, testified in opposition to HB 15 and offered to answer any legal questions that may arise. Her first concern is that HB 15 would jeopardize federal funding. She said that is not the only thing to look at, but as a practical matter, if the state doesn't receive the $12 million to pay for foster care, then there won't be foster parents to take care of children. She said the way the federal law is written protects the families so they can take care of their problems and work toward reunification with their children without public scrutiny. If parents are ordered to go to alcohol or mental health counseling, they know that this information is in the file. Their treatment could be inhibited if they know someone besides the people who have access to the file can look at it. They may not feel comfortable saying certain things knowing it could get back to others. Number 503 CO-CHAIRMAN DYSON said it would be helpful if she would reiterate exactly what Title IV-E says about the kind of confidentiality that is liable to cost the state $12 million. Number 515 MS. RUTHERDALE said she didn't have it right in front of her, but she was relying on the information from the person from Region X of the federal government who advises the DFYS on Title IV-E who had said it would jeopardize the money. She knows that Title IV-E specifically says that they can only go public to release the information if they have a court order or consent, and going to a legislator is going public, however limited. There are other exceptions, but that is basically the thrust of Title IV-E. She added that foster parents can go to court and seek to get that information released. Number 0600 CO-CHAIRMAN DYSON asked if the information that the DFYS gives to foster parents doesn't jeopardize the Title IV-E funding. MS. RUTHERDALE answered correct. CO-CHAIRMAN DYSON asked if that doesn't mean going public, does giving that the same information to a legislator constitute going public. MS. RUTHERDALE answered right. Basically there is a limited group of people ordered by the court who have access to this information which includes the agency, their representative, The Department of Law, the parents and their attorneys. The way to get around that is to get the parent's consent. She believes the reason this statute allows parents to go to legislators, and then the legislators to go back to DFYS to get information, is because, in effect, the parents have consented. But in HB 15 the parents are not giving their consent to foster parents to ask for information. MS. RUTHERDALE pointed out there are alternate remedies that foster parents can pursue. She pointed out that HB 375 made changes allowing foster parents to get much more information than they have ever been able to get before. Now foster parents can get information about the child, the child's history even before the child goes into placement with foster parents, when they are considering placement; once they become foster parents, they are entitled to "notice of hearings," and to attend those hearings. She said that is important that foster parents get notice and be present at permanency hearings. Permanency hearings happen 12 months after a child enters foster care so it is a really important time to say what is happening with this child who has been in custody for 12 months. Another key provision in HB 375 is that the foster parents have prior notice anytime there is going to be a change of placement, unless it is an emergency situation. If there is a decision to remove the child from that foster home, the foster parents are entitled to have notice of that change. If they dislike that action, there are many avenues they can go. They can go to the social worker, the social worker's supervisor, on up the chain all the way to the commissioner. Number 0851 CO-CHAIRMAN DYSON asked if the guardian ad litem can get this information without disqualifying the state from $12 million. MS. RUTHERFORD said yes the guardians ad litem are parties to the case, and they can get information from the file. CO-CHAIRMAN DYSON asked what qualifies a guardian ad litem to be in the magic circle. MS. RUTHERDALE answered that guardians ad litem are appointed by the court to represent the best interests of the child. CO-CHAIRMAN DYSON asked if at the time of the first custody hearing does the judge, as a matter of course, say here are the people who can get the information. MS. RUTHERDALE answered the list is already in statute so the judge doesn't have to order it. CO-CHAIRMAN DYSON asked who else is allowed automatically, and he wonders if the legislators can be added to that list of people authorized to have information by the judge. MS. RUTHERDALE said at that point you've lost the intent of Title IV-E. As frustrating as it may be not to have access to this information, that is the way the federal law is written. She said she thinks the intent of the law is to protect the privacy of the parents to allow them to solve their problems without the whole world watching. CO-CHAIRMAN DYSON asked if the list of who is authorized to get information is state law or federal law. MS. RUTHERDALE answered it is both. CO-CHAIRMAN DYSON asked how long ago was it discovered that there was a problem with HB 15 that might disqualify the Title IV-E funding. MS. RUTHERDALE answered that she learned of that today. CO-CHAIRMAN DYSON said he is unhappy and displeased that both the Department of Health and Social Services and The Department of Law weren't able to find out this information and give the sponsor a chance to deal with this some weeks ago and not take up the committee time as well. He said he understands how busy everyone is, but there is a better way to do this. MS. RUTHERDALE reiterated the process of remedies which already exist for the foster parents. Besides going up the chain of command through DHSS, they can go to the guardian ad litem or the CASA, and there are court hearings every six months they could attend to bring up problems. The only time she can envision the foster parents being completely frustrated and the only recourse would be their legislator, would be if the DFYS, the guardian ad litem and any other party in the case didn't agree with the position, but even then they could go directly to the court for intervention. She understood that this foster parent hadn't gone through all the channels; if all those avenues had been exhausted, they wouldn't be here for this bill. CO-CHAIRMAN COGHILL said in order for them to make a decision they will have to look at the federal Title IV-E. REPRESENTATIVE WHITAKER agreed with Co-Chairman Coghill. He asked if foster parents may approach the guardian ad litem without repercussion. MS. RUTHERDALE said yes. She mentioned that foster parents can also talk about the case with the attorney general because he represents a party to the case and is part of the circle. REPRESENTATIVE WHITAKER asked who may foster parents contact without repercussion. MS. RUTHERDALE answered by saying what concerns her in this bill is the clause that once they go to the legislator, that automatically mandates the department to open their files to that legislator. By law, a foster parent is bound not to disclose information to outside parties except on a need-to-know basis. For example, they can go to health professionals and school teachers and tell them what is going on in this child's life. REPRESENTATIVE WHITAKER said the circle she described is closed, and that is the perceived problem to those outside the circle. The intent of the legislation is to open that circle to a party that is professionally non-aligned. REPRESENTATIVE BRICE suggested that HB 15 might expand that circle, but that circle is still closed. CO-CHAIRMAN DYSON closed the hearing and will continue it Thursday. He asked the committee to look at the specific sections in Title IV-E that delineates what the confidentiality restrictions are, and he asked Ms. Rutherdale to show the code where the judge automatically authorizes who is to be in the circle of information in the custody hearings. He asked the attorney general's office and the DFYS for some creative ways to solve this problem. It is an imperfect process, and here is an attempt to get final help when the other things didn't work. He asked if they could make it so that a legislator by definition can be a CASA or a party to the case or whatever it takes to be included. He hopes this doesn't happen again. KATHY TIBBLES, Program Administrator, Division of Family and Youth Services came forward and acknowledged that it is her responsibility that this piece of information regarding Title IV-E funding was missed. She is the federal funding expert for the division, and she frankly didn't see it. In fact, Mr. Webb or Ms. Rutherdale brought it to her attention, and she is terribly sorry. It won't happen again. CO-CHAIRMAN DYSON thanked her for taking responsibility. [HB 15 was held over]
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