Legislature(2001 - 2002)
03/15/2001 03:05 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 124-NURS.HOME/ASSISTED LIV. EMPLOYEES/VISITOR [Contains discussion of HB 107, which was combined with HB 124] CHAIR DYSON announced that the committee would hear HOUSE BILL NO. 124, "An Act prohibiting nursing facilities and assisted living homes from employing or allowing access by persons with certain criminal backgrounds, with exceptions." Number 2150 REPRESENTATIVE ANDREW HALCRO, Alaska State Legislature, came forth as sponsor of HB 124. He indicated HB 124 has been combined with HB [107], a similar bill that protects seniors and vulnerable adults. He remarked that the number of seniors and vulnerable adults living in assisted living facilities is growing in Alaska and is projected to double by the year 2015. He said currently the Division of Senior Services has 123 homes and almost 1,400 beds, while the Division of Mental Health and Disabilities has 156 homes and 558 beds. He stressed that it is necessary to be proactive in offering ideas and ways to protect [seniors and vulnerable adults]. REPRESENTATIVE DAVIES noted that the statute outlines so-called barrier crimes to ensure the safety of residents from those who have immediate access to or reside in the home. He explained that [the bill] requires all assisted living facilities that receive public funding, regardless of the number of residents, to be licensed. It allows for emergency termination of a housing contract for a resident presenting a danger to himself or herself or to other residents in the home. It establishes immunity from liability or acts of omissions in the licensing, monitoring, and supervision of a licensed home. Finally, it provides a course of action for the state to take over the operation of a home when the home is noncompliant, thereby leaving its residents at risk. He concluded that he thinks the need for this bill is outlined in a [Legislative Budget & Audit] audit dated October 8, 1999, which states: "We have also found that the Pioneers' Home employs several sex offenders. Again, the risks to the residents, staff, and the state have not been assessed." Number 2295 REPRESENTATIVE JOULE made a motion to adopt the proposed committee substitute (CS), version 22-LS008\L, Lauterbach, 3/14/01, as a work draft. There being no objection, Version L was before the committee. Number 2323 ALISON ELGEE, Deputy Commissioner, Office of the Commissioner, Department of Administration, came forth and stated that the provisions contained in the work draft are the results of a number of months of work on the part of the staff from the Department of Administration's Division of Senior Services and the Department of Health & Social Services. She remarked that the review of the entire assisted living and regulatory structure began about 18 months ago, when the assisted living law was five years old, to see what needed to be modified, amended, and improved in order to continue viability of the industry and safety for the residents. She explained that in the course of [reviewing] the regulations a number of areas where statutory modifications needed to be addressed were discovered. She noted that Representative Halcro has picked up those recommendations in his proposed CS for HB 124. TAPE 01-28, SIDE B Number 2368 MS. ELGEE stated that there are a few areas with some difficulties. One is subsection (1) of Section 1, which would require [the Department of Administration] to look at whether or not the victim of a crime was a resident of an assisted living home or a nursing home at the time the crime was committed. She explained that this is not information contained in the background check but is information that the [Department of Administration] would have to acquire in an independent investigation if a criminal background check required further review. She added that this is the section that generates the cost for the Department of Administration in the fiscal note. CHAIR DYSON asked: If any home that is in the business of taking care of vulnerable adults or seniors wanted to employ somebody, would the home not only have to do a background check but also contact all previous similar employers to see if there had been a victimization during the time that this candidate was employed? MS. ELGEE replied that there would need to be an investigation as to who the victim of the crime was, in order to see if the victim was a resident of a nursing home or assisted living home. Number 2314 REPRESENTATIVE WILSON asked whether this implies that a person could have [been convicted of] an offense somewhere else, as long as it wasn't against a resident of a nursing home. MS. ELGEE answered that a variety of crimes are barriers to employment in long-term care. Those crimes, listed on page 2 [of the bill], include any unclassified felony, a class A felony, or an offense under the laws of another jurisdiction that would have met [Alaska's] standards of what is a class A felony. She added that there are subsequent crimes that are a time barrier, so that a class B felony committed within the previous ten years is an automatic barrier to employment in a long-term care facility. She explained that these would all come up in a criminal background check. REPRESENTATIVE WILSON asked why it is necessary to know who the victim was. MS. ELGEE responded that the legislation, as proposed, would say that any crime committed against a resident of a nursing home or an assisted living home is an automatic barrier. Otherwise, it might be a crime that is time-sensitive. REPRESENTATIVE WILSON asked for an example of something that would not show up on a criminal check. MS. ELGEE answered that the criminal background check would identify if somebody had committed a class C felony in the previous five years. REPRESENTATIVE WILSON asked which [crimes the bill would be addressing]. MS. ELGEE answered that it would be any crime against an individual who was a resident of a nursing home or an assisted living home at the time the crime was committed. She explained that if a background check stated that somebody was convicted of a class C felony, but it was 15 years ago, it would not be a barrier under the proposal. The [proposed bill] states that a class C felony has to have been committed in the last five years. She explained that regardless of when it was committed, if it was committed against a resident of a nursing home or an assisted living home, it would be a barrier to employment. Therefore, [the Department of Administration] would have to research what the class C felony was. Number 2189 REPRESENTATIVE WILSON asked why there wouldn't be a record of [the crime]. CHAIR DYSON said there would be a record, but it wouldn't state whether the victim was living in a nursing home. REPRESENTATIVE WILSON asked whether it makes any difference, since the person would not be allowed to work anyway [if he or she had a record]. CHAIR DYSON replied that if indeed it had been 15 years, the person wouldn't automatically be disqualified. He said he understands that the provision on page 1, line 11, would make [the home] get the court records and find out where the victim was residing at the time of the offense. REPRESENTATIVE JOULE added to Chair Dyson's remarks that if the victim was in one of these residential facilities, then the person would not be eligible for hire. CHAIR DYSON stated that he thinks the sponsor is not only looking for the crimes, but is looking at whether the crimes follow a pattern of [victimizing] vulnerable adults, as well as going beyond the statutory year limits. Number 2120 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health & Social Services (DHSS), stated that if a crime was committed against a person who had been residing in a nursing home or assisted living home, it would be a barrier for any offense. REPRESENTATIVE COGHILL said sometimes restraining someone becomes an offense. He shared that he has been places where he has had to restrain people, and he has been charged with a fourth-degree offense, which stays on the record for a long time. He said there are many people with varying degrees of mental health problems, and he wonders if this is driving people "into a box" because of spurious charges. MS. ELGEE replied that she believes an individual has to be convicted, not just charged with a crime. She explained that presently, as proposed, the language includes all class A misdemeanors. She said [the Department of Administration] would recommend that it be class A misdemeanors as defined by regulation, because the class A misdemeanor statutes are extraordinarily broad. She noted that some examples of class A misdemeanors, from page 2, line 11, that [the Department of Administration] would not consider as barriers to employment are unlawful marrying, failure to control a fire, or issuing a bad check. She added that there are some meaningful class A misdemeanors that are proposed in regulations and that would be barriers, such as failure to register as a sex offender or misconduct involving a corpse. Number 1922 REPRESENTATIVE CISSNA remarked that she applauds the efforts made with this legislation. Most of her adult work has been with youth, oftentimes in institutions, but as she ages, she said, she has become more sensitive to the aging population. She said there appear to be some similarities between residential caretakers of children and seniors. She remarked that she has witnessed the danger of vulnerability of the senior population and people who prey upon that. She added that there has been a case involving children who had been sexually abused by a caretaker in every institution that she has worked in. She also asked if there is any component in the bill about restraint training requirements. MS. ELGEE responded that the regulations that are out for public comment right now cover very specific training requirements for the administrator of an assisted living home and for certified nursing assistants. She added that there are also very specific proposals in [the Department of Administration's] budget this year, funded by the Alaska Mental Health Trust Authority, to expand training for in-home care providers and for people who are part of the medical community specific to folks with dementia. CHAIR DYSON asked who would bear the cost of the investigations under the bill. MS. ELGEE answered that the cost of the background checks for [the Department of Administration] are done by the Division of Senior Services. The assisted living facilities, other than the Pioneers' Home, would do their own. Number 1750 CHAIR DYSON asked why there is a zero fiscal note. MS. ELGEE responded that the fiscal note from the Division of Senior Services reflects the extensive reviews required to find out who the victim was. She said she suspects that the people from the Pioneers' Home didn't pick up on that section and would have anticipated some cost, as well, if that were the case. CHAIR DYSON asked who is going to bear the cost of the small assisted homes when they have to get a background check of their prospective employees. MS. ELGEE answered that the Division of Senior Services gets the background checks, since only a state agency can obtain that information. CHAIR DYSON asked how long [the background check] would take if a private provider advertises to get staff and turns the applications over to the Division of Senior Services. MS. ELGEE responded that she thinks 30 days, but that there are other people who could better answer that. CHAIR DYSON asked if she knew how many people employed presently would be covered in this category if they were applying for a job. MS. ELGEE noted that there are approximate 600 employees at the Pioneers' Home. Number 1665 REPRESENTATIVE WILSON stated that she doesn't understand why there is a zero fiscal note. She asked if [the Department of Administration] anticipates an increase. MS. ELGEE replied that [the Department of Administration] currently performs background checks, and that [HB 54] just provides better definition of what a barrier crime is. She added that [the Department of Administration] is already bearing that cost. CHAIR DYSON asked if there would be no increase. MS. ELGEE answered that the increase would only come as there continues to be a growth in the industry. CHAIR DYSON asked whether this bill does not increase the number of categories of employees that need to have background checks. Number 1008 MS. ELGEE answered that there are some new categories of people contained in this legislation. Right now [the Department of Administration] does background checks on employees who are involved in the direct provision of long-term care. She explained that this legislation proposes an expansion to those individuals who have access to the residents of the home in an unsupervised capacity who could also be capable of causing harm such as a contractor of the home, a regular volunteer, and family members who live in the home. CHAIR DYSON asked if this refers to family members of the owner of the home. MS. ELGEE replied yes. Number 1514 REPRESENTATIVE COGHILL said he understands that those submitting to a background check are required to submit to fingerprinting; therefore, this is not done without their knowledge. MR. LINDSTROM responded that he believes the background check does include a fingerprint check. REPRESENTATIVE COGHILL remarked that he just wanted to make sure that people know about all the information that is being collected about them. Number 1454 MR. LINDSTROM noted that the work draft is really a marriage of two bills: Representative Halcro's original bill, HB 124, and HB 107, introduced by the governor. He pointed out that in combining them, an element fell between the cracks. He said that DHSS would like to see added to the nursing home section language that is parallel to what is already in the committee substitute on assisted living, specifying that the contractor and other additional people be subject to background checks. He clarified that subsections (a) and (b) would be just as in the work draft and subsection (c) on the last page would have to be tweaked a little bit. He added that he has had some questions relative to the governor's bill on the background checks regarding whether a resident's family that is visiting would be subject to the checks. He noted that the beginning on page 4 of the work draft specifies when the section applies and tries to address other kinds of contractors who are in the home, but not on a recurring basis, as well. MR. LINDSTROM added that DHSS did prepare a fiscal note of $30,400 specific to the research needed on whether or not the victim of the offense was in a nursing home or an assisted living home. The governor's bill has a fiscal note of $100,000 for additional licensing staff for the Division of Mental Health and Developmental Disabilities. He noted that one section in the bill eliminates the exemption for facilities that have fewer than three residents from licensing. CHAIR DYSON asked whether the governor's bill extended the background checks for all homes, including those with under three [residents]. MR. LINDSTROM responded that [the governor's bill extended] the basic licensing to all homes, homes with less than three residents are not necessarily licensed. CHAIR DYSON asked if the governor's bill brings the law into congruence with what DHSS has been doing and forces DHSS to do similarly. MR. LINDSTROM said that is correct. Number 1221 REPRESENTATIVE WILSON asked how much it costs for a facility to get licensed. She also asked how many times a fingerprint check would turn up [a criminal history], since a person who knew that his or her fingerprints would show [a criminal record] wouldn't bother to get his or her fingerprints taken. MS. ELGEE said someone else would be more capable of answering those questions. REPRESENTATIVE COGHILL offered that he has driven a van to pick people up from assisted living homes and take them to church. He asked if those administering in that area would have to have a background check. MR. LINDSTROM answered that a regular volunteer would be subject to a background check. A qualifier is a person who is working or providing a service in the home; therefore, he said, it would be a little ambiguous if the person was actually picking the person up at the home and going elsewhere. Number 1019 GARY WARD, Licensing Coordinator/Assisted Living Homes, Division of Senior Services, Department of Administration, testified via teleconference. He clarified that the background check is a requirement of employment and the process begins when someone approaches the home as an applicant. Prior to being hired [the applicant] must submit to the administrator of the home a sworn statement attesting to whether or not he or she has been convicted of a crime as well as an interested-party name check. He explained that the person would have to go to the local police department, show a picture ID (identification) and obtain a computerized printout of any criminal history the person may have had in the state of Alaska, and bring it to the administrator. MR. WARD remarked that in some cases an administrator of a home would not hire the person based on that criminal history. If there is no criminal history, or if there is a minor conviction from a number of years ago that the administrator doesn't feel precludes this person from being an employee or being a potential risk to the health and safety of the residents of the home, the person can be hired. Within 30 days of being hired the person must submit to the Department of Public Safety two sets of fingerprints: one set to remain with the Department of Public Safety and the other to go to the FBI (Federal Bureau of Investigation). Those results take six to eight weeks to come back from the FBI MR. WARD continued, stating that in terms of the costs it varies. In many cases the employee [of an independent home] bears the burden. It is usually $20 for the name check, $25 for the fingerprints, and $59 for the prints to be processed by the Department of Public Safety and the FBI. He stated that in some cases the home does pay for it, and in other cases the home may pay and deduct it from a subsequent paycheck of the employee. He explained that results from the FBI check go to the Division of Senior Services if there was a criminal history. They do not go to the home unless that home is acting as its own agent. He clarified that the Pioneers' Home system does its own background checks, and that information would come back to their HR (human resources) office. He added that the records go back at least 30 years. MR. WARD stated that if the [Division of Senior Services] is concerned with a background check, it informs the home that the employee has a criminal conviction and [the Division of Senior Services] will then conduct an interview with the employee. He noted that [the Division of Senior Services] is not allowed to share the specifics of the convictions with the administrator of the home, but does have the authority to tell the administrator of the home that he or she has to dismiss the employee. He clarified that [the Division of Senior Services] looks at convictions, not charges. Number 0712 MR. WARD explained that licensing fees generally turn out to be about $25 per bed space for a two-year period. It would be very difficult to track whether the victim was a resident from a nursing home or an assisted living home because the results [of the background check] would just say what the person was charged with and convicted of and whether he or she was sentenced. Therefore, in order to get information on the victim, [the Division of Senior Services] would have to contact the court or local law enforcement agency of the specific jurisdiction and make a request to ascertain who the victim was. He explained that it would be very cumbersome and time-consuming to try to track the victim. Number 0529 CHAIR DYSON asked if it was Mr. Ward's sense that this provision would catch many "bad guys" that wouldn't be caught by the other provisions. MR. WARD replied that it is hard to predict. CHAIR DYSON said he thinks the sponsor is after a discernible or demonstrative pattern of victimization of seniors or helpless people, but said he is wondering whether that would demonstrate a pattern if the perpetrator had taken a ten-year recess. He asked whether, if the applicant were asked to give a concurrent employment history that was verifiable and it was laid next to the criminal background check, that would help in tracking a pattern of victimizing seniors. MR. WARD answered that [the Division of Senior Services] wouldn't know if the crime was committed in the home necessarily or outside the home. He added that [the Division of Senior Services] could probably contact the home but that he has found that many times the employers won't talk. Number 0268 REPRESENTATIVE CISSNA asked if a pattern of reports would show up with no convictions. MR. WARD answered that, in his experience, he hasn't seen very many [reports] where there is a lengthy list [of convictions]. He mentioned that usually when there are that many charges, there is a pattern and somewhere along the line there is a conviction. He added that when there is a conviction [the Division of Senior Services] looks at how long ago it occurred, how many there were, the severity of the conviction, and what actions - in terms of rehabilitation - the person had to take. CHAIR DYSON asked whether it is the practice of employers to put the applicant to work while the background check is being conducted. MR. WARD responded yes, if there is nothing on the name check, which only supplies any criminal history within the state of Alaska. He added that it would be very difficult to get employees if they had to wait eight weeks before the fingerprints came back. TAPE 01-29, SIDE A Number 0015 AILEEN HERRING, Secretary Treasurer, CARING, testified via teleconference. She stated that she has a very personal interest in HB 124, since a family member was beaten at the Pioneers' Home and died the following day. She remarked: If you have never had to place a loved one in the care of others, then it is impossible to relate to how it feels to lose a parent to abuse and neglect, under the care of a professional caregiver. ... The loss of a parent or loved one in a long-term care facility is just not acceptable, and the inability to change the system that created the injury and the inability to protect the other residents in these facilities leads to mass frustration. The family member [who] placed the resident in the home carries a great burden of guilt forever. My father was totally dependent on his caregivers. It is unacceptable to employ caregivers or continue to employ caregivers that have a history of abusive or criminal behavior that place[s] the residents at risk. CHAIR DYSON asked if a background check would have caught the perpetrator who killed her father. MS. HERRING answered that she didn't know. She said several employees have had multiple cases brought against them for abuse, and there seems to be something really wrong with the system. CHAIR DYSON asked if the perpetrator in her father's case had a prior record. MS. HERRING said that hasn't been established. She added: The legislative audit done October 8, 1999, states that the Pioneers' Home employs several sex offenders ... and, "Again, the risks to the residents, staff, and the state have not been assessed." And then it says, "The commissioners of the Departments of Administration and Health & Social Services should adopt regulations to prohibit employment of certain criminals in assisted living homes." Number 0254 CHAIR DYSON called for an at-ease at 4:44 p.m. The meeting was called back to order at 4:45 p.m. Number 0363 MELVIN RICHARDSON, Community Care Licensing Specialist, Mental Health & Developmental Disabilities, Department of Health & Social Services, testified via teleconference. He said there is an extremely high turnover rate - between 50 and 60 percent - of [care providers] who have to have fingerprinting done each year. The average number [of care providers] each year that are fingerprinted is between 500 and 600. Number 0444 SUZAN ARMSTRONG-SILVA, Long-term Care Ombudsman, Alaska Mental Health Trust Authority, Department of Revenue, testified via teleconference. She stated that, with one exception, all the offenses listed as barriers in the proposed statute would greatly enhance residents' safety and welfare. She emphasized that persons who have victimized residents in the past must be prohibited from ever working in long-term care, regardless of whether the crime was a felony or a misdemeanor. She remarked that the Long-Term Care Ombudsman's office would not like to see a five-year ban on class A misdemeanors, but prefers to have exceptions through regulations that the Department of Administration has already outlined. MS. ARMSTRONG-SILVA stated that assisted living home operators would not be required to provide 30 days' notice when terminating a resident's contract against his or her will, on an emergency basis, under the new section of the bill. She explained that the proposed language [on page 8, line 10, of the work draft] states that that the provision of written notice shall be provided within 72 hours but not less than 24 hours for termination of a resident. She remarked that she believes this language should be amended to read: "Written notice shall be provided not less than 72 hours before termination of the resident." She expressed that 72 hours is a more realistic timeframe than allowing a scant 24 hours to find alternative placement for a resident. MS. ARMSTRONG-SILVA concluded that this section [page 8, line 10] does not contain any language about the appropriateness of the termination and has no vehicle by which the resident or anyone else may contest this type of termination. She remarked that she believes this kind of language should be written into the new section and that all existing sections to the law should address termination and be strengthened to allow for an emergency appeal process for residents. Number 0767 LISA CARESS-BEU, Board Member, CARING, testified via teleconference. She shared that her mother was the resident of Anchorage Pioneer's Home for five years and is well acquainted with the vulnerability of long-term care residents. She remarked that she is deeply concerned with Section 9, regarding involuntary termination of residents' contracts and how it will affect resident rights. She asked if this would provide assisted living homes an easier way to discharge residents that are difficult - residents with dementia through no fault of their own who sometimes exhibit very difficult behaviors. She added that there are often shortages of available, appropriate housing for seniors suffering from dementia, and this would put residents at risk of not finding competent care. Number 0865 SHELBY LARSON, Administrator, Health Facilities Licensing & Certification, Division of Medical Assistance, Department of Health & Social Services, testified via teleconference. He stated that [the Division of Medical Assistance] supports this legislation and recommends changes protecting the welfare of vulnerable adults. RANDALL LORENZ, Staff to Representative Fred Dyson, Alaska State Legislature, came forth and stated that five years ago he was shocked to hear that Rio Linda High School [in California] was in the news as the result of a child being murdered. He explained that [the school] had hired an individual at the time when California allowed individuals to be employed while a background check was being done. After two weeks of employment, this [employee] took the girl into a classroom and raped and murdered her, two weeks before the background check came in. He said he knew that child very well and strongly encourages that people not be allowed to go into these settings without first completing the background check. Since [the incident in California], California now requires [the background check first]. [HB 124 was held over.]
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