Legislature(1993 - 1994)
02/09/1994 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 376 - ASSIST AND PROTECT VULNERABLE ADULTS Number 059 NANCY BEAR USERA, Commissioner, Department of Administration, testified in support of HB 376 and HB 377. She started by giving a brief overview of HB 376 and HB 377. She stated that the goal of the legislation was to foster independence and dignity for elderly and deal with them as individuals. She continued to say that much of the proposed legislation resulted from input from the Elder Alaskan Commission and the Pioneer Advisory Board and other various senior organizations throughout the state. Also, the Department of Health and Social Services (DHSS) and the Department of Administration (DOA) made a collaborative effort to put forth the legislation. COMMISSIONER USERA said there are three initiatives, the first being consolidation of state provided senior services into a single division. She stated there would be a single site of access where seniors could access a variety of programs. She then addressed specifically HB 376, the adult protection bill. She said adult protection services were being provided by DHSS, "where they were grouped together by the function. It was the protective aspect of it and not the populations being served." She stated that senior needs are unique and that they should not be grouped together with systems that also deal with children. COMMISSIONER USERA stated that there is a large gap in the continuum of care. She said that home care based services, senior housing services, and nursing homes are the only choices for seniors. She inquired about people who only need help with daily living or people who don't need 24 hour nursing care, and if there were solutions to these situations. She felt that the assisted living concept offers a wide range of opportunity for people to get the services they need in their communities and to have community-based services available to them. She stated that it is a consumer-oriented program that will allow seniors to buy the appropriate services for themselves. She further stated that the proposal would allow for licensing of facilities that offered services to the seniors. Number 310 CHAIR TOOHEY asked if the services would be obtainable by a senior who lives in his/her own home. Number 322 COMMISSIONER USERA said that it was possible, but it was not the intent. She said home care services are provided as part of Project Choice to Medicaid eligible Alaskans. She said there are a number of other support services available, also. She explained that generally the legislation would provide opportunities for people to move in to homelike facilities (facilities with four people or 40 people) and utilize the available services. Number 372 CHAIR TOOHEY suggested the term "rooming house." Number 389 CONNIE SIPE, Director, Division Senior Services, Department of Health and Social Services, testified in support of HB 376 and HB 377. She stated that HB 376 is a revision of current law and it would transfer the authority for adult protective services from Dependent Family and Youth Services (DFYS) to the Department of Administration (DOA). Ms. Sipe said that it was protection for all vulnerable adults above the age of 18 years old. MS. SIPE told the committee that HB 376 is a combination of two former bills, "an elder abuse reporting bill and a disabled abuse reporting bill." She stated that the proposed legislation offers protection to vulnerable adults and tries to interfere less with capable adults whether they be elderly or handicapped. The proposal, she said, would streamline abuse reporting and would reduce duplicate work done by state investigative agencies. The legislation would allow for an investigation by the licensing agency and the long-term care ombudsman, hence decreasing the number of agencies involved in an investigation of an abuse report. MS. SIPE continued on by saying that a centralized information and referral office for vulnerable adults and care givers would be opened. She said the proposal would enable the designation of local care providers as a preliminary outreach to the community. MS. SIPE stated that the proposal would honor a competent adult's refusal of services or request to terminate an investigation of abuse. Appropriate information on the status of an investigation would be shared with the reporter of the abuse. She said that current confidentiality law is very strictly interpreted and many times the person or facility who reported the abuse finds it difficult to obtain information informing them that the abuse victim is safe or if the investigation is still continuing. MS. SIPE said that HB 376 would allow family members as "surrogate decision makers" to consent to services if the vulnerable adult is temporarily or permanently incapable of making decisions. MS. SIPE further stated that the legislation would clarify when and for what relief the state may seek judicial intervention to protect a person, citing the domestic violence writ whereby an injunction may be obtained to stop a perpetrator from interfering with services to the vulnerable adult. Number 500 MS. SIPE indicated that some definitions would change with the new legislation. Abuse would be redefined to focus on intentional or reckless, not accidental harm to adults. She said that even accidental harm to a vulnerable adult must be reported, causing a "misuse of state resources." She continued on and said that neglect would be redefined to focus on intentional failure to provide care, not inability to care. Exploitation, she said, would include the exploitation of the victim's person as well as resources, giving an example of a caregiver helping a client deplete a bank account with numerous vacation trips. MS. SIPE reminded the committee that any litigation would be in a civil context. She said that the proposal is a new reporting system for abuse to vulnerable adults and that it allows for the state to interfere less with clients and offer more centralized services. MS. SIPE stated that the final section of HB 376 would allow for a smooth transition and transfer between the departments. Number 615 (CHAIR TOOHEY stated for the record that Rep.G. Davis arrived at 3:08 p.m. and Rep. Kott arrived at 3:18 p.m.) Number 632 REP. BUNDE asked what the financial impact would be on state revenues if HB 376 was enacted. Number 642 MS. SIPE said that, "actually it's a total transfer. The current resources now in Family and Youth Services are about $563,000 and those will transfer in total into the Division of Senior Services." She added that there were "empty" job positions in the Division of Senior Services that would be filled and utilized for the new legislation. Therefore, there would be no increase or decrease in state funding. Number 680 REP. VEZEY asked what the penalty would be for violating the proposed statute. Number 683 MS. SIPE responded that it would be a "Class B felony " if a professional fails to report an abuse. She also said the failure to report could be reported to the professional's licensing board. She reiterated that there would be no criminal action taken. Number 705 REP. VEZEY asked if Ms. Sipe knew if anyone had ever been prosecuted for failure to report an abuse. Number 716 MS. SIPE replied that there have been investigations but that she knew of no prosecutions. Number 724 CHAIR TOOHEY, speaking as a past medical provider, related how important it was to not only report any abuse but to follow through. She also spoke of the obligation of the reporter to make sure that something was done. Number 725 REP. VEZEY felt that it may not be appropriate for the promotion of good health care for professionals to be put under the threat of a criminal penalty. Number 748 MS. SIPE stated that along with the duty to report comes an immunity from being sued for reporting. It is a balancing measure to ensure that people report but also that they feel protected against possible litigation. MS. SIPE said that on page 3, line 5, of the proposal was the criminal penalty for failure to comply. Number 782 REP. VEZEY asserted that the penalty was a violation and not a felony and was subject to a fine. Number 786 MS. SIPE apologized and said that she should be using the word "misdemeanor" and not "felony." Number 798 CHAIR TOOHEY stated that it was her intention to move HB 376 out of committee, but she wanted Ms. Sipe to continue with a sectional analysis. Number 800 MS. SIPE stated that in fiscal 1993 there were a total of 408 reports made to DFYS of harms done to vulnerable adults. Of those abuses, 200 were committed against elderly over the age of 60. She said that over 38% were requests for services from concerned citizens within that person's community. She further stated that 23% were reports of self-neglect (an elderly person not able to care for his/herself). Economic abuse was 6% and physical abuse was 20%. She said that the statistics did not indicate a "huge" problem, but a growing problem. Number 842 REP. BUNDE asked how many cases last year were there of persons guilty of failure to report? Number 850 MS. SIPE said that, to her knowledge, there has been no prosecutions. Number 877 REP. BUNDE clarified by saying that the legislation was written in this case "to plug an eventual hole." Number 886 REP. B. DAVIS asked what kind of protection does the professional who reports an abuse have under the proposed legislation? Number 902 MS. SIPE responded by saying that the two previous bills that have been combined, resulting in HB 376, have immunity and liability sections. She said the statute provides immunity from liability and prohibition against legal retaliation. Number 915 REP. B. DAVIS asked "who pays the bill?" MS. SIPE answered by saying that the state would not cover that cost, but because of the broad protection of absolute immunity, there are few law suits. Number 931 REP. B. DAVIS wanted to know specifically what support would be provided to the reporter, explaining that the burden of proof would lie with that person. Number 938 MS. SIPE said that the legislation does not provide legal support for the person who reports an abuse. Number 949 CHAIR TOOHEY asked if there was someone in the room who could further address the issue. There was no one at that time. Number 954 REP. B. DAVIS stated that she would like that information, but she would not hold up the bill for the requested information. Number 957 MS. SIPE said that the first sections of HB 376 define the protected vulnerable classes. She said the legislation amended the list of people who are required to report, including new definitions and additional persons who would have to report. She said that reporters are also allowed under subsection E, page 3, line 17, to report abuse to a police officer. MS. SIPE stated that page 3, line 26, would streamline the procedure of reporting abuse. The proposal would protect the reporter who may report an abuse to the wrong department. MS. SIPE further stated that on page 4 of the proposal there were deletions of the immunity and retaliation sections that were combined and redefined in Section 6. MS. SIPE said that Section 2, page 4, line 22, describes the duties of the Division of Senior Services and the amended law. It outlines everything the department would be responsible for. She indicated that page 5, lines 2-7, would allow other state agencies to serve as designees of the department. MS. SIPE said that page 5, line 8, would enable the reporting of abuse of persons over 60 years of age to be handled at two places -- the long term care ombudsman and the licensing branch in DHSS. Reports of abuse to persons under age 60 would be reported to the licensing agency at DHSS. Upon receipt of a report of abuse the ombudsman and DHSS would conduct an investigation, coordinate their investigations if jurisdiction overlaps, and provide results to the central information and referral service of the department (DOA) within 60 days. MS. SIPE addressed the language on page 6, line 24. She said it would allow the department to initiate a prompt investigation under appropriate guidelines. She stated that subsection B, line 1, indicates the procedure the department would go through after the completion of an investigation. She added that a vulnerable adult who is the subject of a report may request at anytime that the department or designee terminate an investigation. However, if the investigation, at that point, has resulted in reasonable cause for protection for the vulnerable adult, the department may petition the court for permission to give protective services for an injunction or the department may refer the report to the police for a criminal investigation. MS. SIPE continued on to say that page 7, line 23, would allow for surrogate decision makers for vulnerable adults. She said that after the department has determined that the vulnerable adult needs protective services, and for various reasons addressed within the bill the adult cannot consent, the department could select a suitable guardian listed on page 8, lines 1-27. Number 154 CHAIR TOOHEY said that "you're assuming that this person is surrounded by loving family." Number 157 MS. SIPE stated that if they are not, then the department would go to the courts to obtain guardianship, which takes up to 90 days. MS. SIPE continued on with the analysis. She said page 8, line 28, would assure that after it was determined that protective services were needed, the department would provide those services within ten working days after receipt of the report that indicated either abandonment, exploitation, abuse, neglect, or self-neglect. TAPE 94-12, SIDE B Number 000 MS. SIPE said that the legislation on page 9, line 16, stated that protective services are supposed to be delivered in a culturally relevant manner that would protect the vulnerable adult's right to the least restrictive environment and would maximize that person's own decision making capabilities. MS. SIPE stated that the guidelines for petitioning the court for certain protective services were contained on page 9, line 20. She further stated that the vulnerable adult could petition the superior court for an injunction that would restrain a caregiver or perpetrator from interfering with the provision of protective services to the vulnerable adult. MS. SIPE stated that Section 3 ensures appropriate monitoring of the adult and that Section 4 ensures the confidentiality of all reports of abuse. She said that Section 4 would allow other appropriate state agencies to obtain necessary information as it applies to the client. Number 100 MS. SIPE addressed subsection 5 of HB 376, stating that regulations must be provided to and reviewed by the Older Alaskans Commission. She continued on, citing that Section 6 would allow immunity from liability and the prohibition of retaliation. MS. SIPE said that subsection 7 contains definitions and she highlighted the rewriting of definitions of abuse. She stated the new definition of abuse as being "the willful, intentional, or reckless nonaccidental, and nontherapeutic infliction of physical pain, injury, or mental distress; or sexual assault..." She said that currently abuse is the infliction of any physical pain. In the proposed legislation, emotional pain was included. She said it would protect the person who unintentionally causes pain and has never had a history of causing pain to a vulnerable adult. MS. SIPE informed the committee that protective services are defined on page 12, line 18. She said that protective services "are those intended to prevent or alleviate harm resulting from abandonment, exploitation, abuse, neglect or self-neglect and that are provided to a vulnerable adult in need of protection." Number 200 MS. SIPE cited the circumstances under which vulnerable adults would be unable to consent pertaining to the guidelines of Section 7. The vulnerable adult may be incapacitated, living under coercion or fear of reprisal from the perpetrator, dependent on the perpetrator for services, care or support, or the adult may not realize that the refusal of services may result in substantial death or irreparable harm to self or others. MS. SIPE stated that Section 8 would ensure a gradual and smooth transition and that it would allow for an effective date of July 1, 1994. She asked for questions from the committee. Number 251 REP. VEZEY noticed that a substantial amount of existing statutes were being deleted and very similar wording was being inserted in other areas. He asked what the reason was for that. Number 261 MS. SIPE responded by saying there were two previous laws that had very similar language and HB 376 was a merging of those two laws. Subsequently, part of one had to be deleted so the two could be combined. Number 275 REP. VEZEY said he was unsure of the definition of abuse. He explained that the definition of abuse is very subjective and that he did not understand the term "therapeutic pain." Number 312 MS. SIPE answered that certain types of physical therapy necessary for rehabilitation could cause pain to the vulnerable adult. There is pain involved, but it is therapeutic. Number 369 REP. VEZEY stated that he would be in favor of family guardianship and not state guardianship. Number 387 CHAIR TOOHEY asked for further testimony on HB 376. Number 397 PAT O'BRIEN, Division of Family and Youth Services, Department of Health and Social Services, testified in support of HB 376 and HB 377. She said that on behalf of DFYS she strongly supported moving the role of adult protection services over to the Division of Senior Services. She felt that the needs of the community would be better served in the division. Number 435 CHAIR TOOHEY asked who would pay the legal costs for a reporter if perhaps the family of the vulnerable adult sues. Number 448 MS. O'BRIEN said there has never been a case like that and she did not know how it would be handled if that situation was to arise. Number 456 REP. B. DAVIS stated that there are people who are fighting cases where they have reported abuse and the family has sued because the report was unsubstantiated. She said it was her understanding that there is no assistance from the department. Number 470 MS. O'BRIEN said she was unaware of any such cases. Number 472 REP. B. DAVIS asked Ms. O'Brien to explain what would happen if that situation occurred under the proposed legislation. Number 475 MS. O'BRIEN replied that if an individual reported an abuse and subsequently experienced a law suit, she believed the current statute had a provision that would indemnify the reporter from being sued. She said she would have to research it. Number 488 REP. B. DAVIS asked what was meant by "indemnify" and would it pay the court costs for the reporter? Number 500 MS. O'BRIEN said that she needed to research the issue further. Number 506 REP. BUNDE stated that Section 6 says that reporters are immune from civil or criminal liability, indicating that the judge would have to "throw the case out." He asked if immunity meant that a reporter cannot be sued, period. Number 621 MS. SIPE said that there was nothing that could keep someone from being sued. She said that someone may try to address the issue of whether the caller was reporting in "good faith" or not. In that situation a reporter might have to incur legal fees to testify that the report was made in good faith (and the case would be dismissed). She didn't think that the state had a system to indemnify the reporter. Number 549 REP. VEZEY commented that he felt there was a big difference between immunity and indemnity. He said, as he understood the proposal, that the reporter would be immune from civil or criminal liability, period, and that there is no indemnification but there is immunity. Number 677 REP. B. DAVIS wanted to make sure that this legislation would be stronger than current law regarding liability versus indemnification. Number 696 MS. SIPE felt that the new legislation did not address Rep. B. Davis' concern. Number 601 MS. O'BRIEN asked if the cases Rep. B. Davis was referring to were in Anchorage and were in the adult-care field. Number 604 REP. B. DAVIS responded yes, and that Ms. O'Brien could contact her office for that information. Number 614 CHAIR TOOHEY closed HB 376 to public testimony and asked for further questions from the committee. Number 619 REP. KOTT stated that he was unclear as to what the current law is for notifying agencies of child abuse, what the provisions are, and what are the penalties. He said that those who would be guilty of committing a violation under the proposed legislation would incur a $250 fine. Number 636 MS. O'BRIEN said that she would have to research that specific issue. Number 643 MS. SIPE said, "I think it's probably the same." REP. KOTT referred to page 2, line 12, and asked why a member of the clergy would be listed as a person with a professional duty to report abuse. Number 665 MS. SIPE said that it was the current law for both children and vulnerable adults stemming from the late 1980's. She said there was an eventual determination by the legislature that members of the clergy be included. Number 697 REP. B. DAVIS made a motion to move HB 376 out of committee with individual recommendations. Number 700 CHAIR TOOHEY, hearing no objections, stated that HB 376 was so moved. She indicated that in the committee bill packets were copies of a letter from the Homer Senior Citizens. She then asked for testimony on HB 377.